Opinion
# 2011-015-531 Claim No. 114986
10-24-2011
LANGNER v. THE STATE OF NEW YORK
Synopsis
Following trial, claim alleging injuries and death of claimant's decedent were caused by failure to guard against collision with roadside hazard was dismissed. Cause of action for pain and suffering was untimely and wrongful death cause of action was unsupported by proof of pecuniary loss to next of kin. In addition, claimant failed to establish existence of roadside hazard or duty to install guardrail. Case information
UID: 2011-015-531 Claimant(s): JEREMY MARC LANGNER AS EXECUTOR OF THE ESTATE OF ALFRED B. LANGNER, DECEASED Claimant short name: LANGNER Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant (s): Claim number(s): 114986 Motion number(s): Cross-motion number(s): Judge: FRANCIS T. COLLINS Andrew L. Weitz & Associates, P.C. Claimant's attorney: By: Andrew L. Weitz, Esquire Honorable Eric T. Schneiderman, Attorney General Defendant's attorney: By: Belinda A. Wagner, Esquire Assistant Attorney General Third-party defendant's attorney: Signature date: October 24, 2011 City: Saratoga Springs Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
The decedent, Alfred B. Langner, died following an accident in which the vehicle he was driving left the southbound lanes of I-87 in the Town of North Hudson, Essex County, New York. A trial on the issue of liability was held in Albany, New York on April 4, and 5, 2011.
The claimant's first witness was his expert, Nicholas Bellizzi. After relating his professional background, education and experience, Mr. Bellizzi addressed the concept of a "clear zone" which he described as the area adjacent to the edge of a highway's travel lane which must be clear "of any fixed objects or hazards" (Transcript 1, p. 23). The witness then clarified that the clear zone extends 30 feet from the edge of a highway's travel lane and includes the shoulder area. Specifically, Mr. Bellizzi explained that the clear zone concept requires that the roadside area be free of any obstacle or hazard including bodies of water, foundations, sign structures, trees, utility poles and "hazards that are considered to be slope-related, where if you have a steep embankment or a sharp drop-off, or what's called a non-recoverable slope" (Transcript 1, p. 26). In general, a clear zone is meant to be an area free of hazards or obstacles where an errant vehicle which is driven off the travel lane may recover without sustaining significant damage, or its occupants incurring substantial injuries.
To the extent the area constituting a clear zone contains an obstacle or hazard, the obstacle or hazard must be relocated or otherwise eliminated. According to Mr. Bellizzi, "if you can't relocate it and you can't eliminate it, then you could protect it from, from being struck, and the method of protection is via a guide rail" (Transcript 1, pp. 26-27). To the extent a clear zone free of any fixed objects or hazards is established, installation of a guide rail is inappropriate because "you don't want to prevent people from going into the clear zone" (Transcript 1, p. 26).
The parties stipulated that Exhibit A is a portion of the record plans for the original construction of the area of Interstate 87 where the subject accident took place. Mr. Bellizzi then identified Exhibit B as plans for the reconstruction of a culvert located adjacent to the roadway in the area where the accident occurred. What was described by Mr. Bellizzi as a culvert, depicted in Exhibit M, is actually a large pipe cut on an angle and protected at its opening by horizontal safety rails. The culvert pipe extends underground in a southerly direction where it connects to a large concrete box. The structure is depicted in various photographs of the scene taken by the witness at a site visit on October 30, 2009 (Exhibits 4 - 17). While at the scene Mr. Bellizzi also took various measurements by which he determined the width of the two southbound lanes of I-87 (12 feet) and adjacent paved shoulder (12 feet). He also determined that the distance between the outside edge of the shoulder and the most easterly portion of what was referred to at trial as the "culvert" was also 12 feet. Based upon these measurements , the witness determined that the eastern most edge of the culvert, that closest to the highway, was 24 feet from the edge of the travel lane. In addition to the above measurements, the witness also utilized a slope meter which was placed on the upper portion of the eastern edge of the culvert. Using the slope meter he determined that the uphill slope of the entrance to the culvert, from north to south, was eight degrees. Mr. Bellizzi then stated that in his opinion the culvert constituted a hazard existing within the 30 foot roadside clear zone.
Mr. Bellizzi testified that in preparing for trial he reviewed an accident reconstruction report prepared by New York State Trooper Richard A. Hoff, which was received in evidence as Exhibit AA.He testified that Trooper Hoff's report refers to a measured angle or slope of five degrees. The report also states "[a] pair of tire marks, identified as tire prints, was located in the snow on the west shoulder leading to the culvert grate" (Exhibit AA, p. 2). Mr. Bellizzi testified that a tire print is "an imprint of the pattern on the tire in the snow" (Transcript 1, p. 58). In addition, the report indicates that the "tire marks indicated that the vehicle's rear axle was tracking the front axle" (Exhibit AA, p. 2). According to Mr. Bellizzi, this portion of the report indicated "the rear tires were tracking the front tires, which means it [claimant's vehicle] wasn't rotating or sliding" (Transcript 1, p. 58).
The parties stipulated to the receipt in evidence of the accident reconstruction report subsequent to trial as the parties neglected to offer this Exhibit into evidence during the trial.
The witness was next queried with regard to the conclusions/findings portion of the New York State Police Reconstruction Report which states as follows:
"Based upon the evidence observed at the scene, the examination of the involved vehicle, and the witness statement, the following conclusions have been drawn: Vehicle One, Lincoln, was traveling at approximately 79 miles per hour in a southerly direction on Interstate 87. As the vehicle entered a gradual left hand curve it traveled off the roadway onto the west shoulder. It then struck a culvert/grate and became airborne and traveled through the air landing on an earth embankment surrounded by trees. The vehicle continued through a significant amount of trees and plant undergrowth to its area of uncontrolled final rest, facing in a southerly direction.
Vehicle One traveled a total distance of approximately 320 feet along the shoulder and came to rest approximately 45 feet west of the roadway. The faded maroon-colored Lincoln came to rest within a stand of trees and plant undergrowth, with a large evergreen type tree lying along the vehicle's left side. The vehicle was essentially camouflaged or concealed within this wooded area on the west shoulder.
The primary cause of this collision was failure to maintain control of the vehicle on the part of the operator, Alfred B. Langner. Langner's failure to take evasive action in response to a hazardous condition is consistent with a distracted or fatigued operator. This is supported by the lack of roadway evidence and the in-line tire prints in the snow, combined with the physics of the collision" (Exhibit AA, pp. 6 - 7).
Based upon these conclusions as well as the report's findings that claimant's vehicle became airborne, traveling approximately 61 feet through the air before landing and continuing an additional 111 feet to the point where it came to rest, Mr. Bellizzi stated his opinion that "the launch point was as the vehicle was coming off the top part of the culvert" (Transcript 1, p. 63).
Mr. Bellizzi then marked the point at which he determined the claimant's vehicle became airborne on Exhibit M-2.
Claimant's expert testified that several factors are considered in determining whether roadside terrain is "traversable", including the slope of the terrain which, to be traversable, should be gradual with no abrupt changes. He then testified to his opinion that "the culvert itself and the slope of the culvert isn't a problem. It's, it's what the culvert leads to . . . the open end of the culvert that has the pipe rail on it is sloping upward, and then it stops sloping upward" (Transcript 1, p. 65 - 66). He explained that the upward slope of the entrance to the culvert ends abruptly and flattens in the area where the "concrete box is embedded" (Transcript 1, p. 66). In this regard Mr. Bellizzi stated, "So instead of having one continuous line, the line that would continue stops and it levels off, and that's the launching pad for the car" (Transcript 1, p. 66). According to the witness, the culvert with its sloped entrance constituted a roadside hazard which should have been relocated outside the 30 - foot clear zone. Alternatively, if the culvert apparatus could not be relocated, "you would modify the terrain to the south of the sloping culvert to have it continue to slope upward. In other words, it would continue on the slope so that it would remain a traversable slope" (Transcript 1, p. 67). Finally, if the structure could not be relocated or the terrain modified, a guide rail should have been installed to protect errant vehicles from coming in contact with the culvert. In his opinion, "If a guard, a properly installed guide rail had been installed in this area, that would have prevented the vehicle from getting to this culvert" (Transcript 1, p. 68).
On cross-examination the witness testified that he utilized a Johnson Magnetic Angle Locator to determine the slope of the subject culvert. He agreed that he placed the slope meter on the rocky ground immediately adjacent to the culvert as depicted in Exhibit 8, and agreed also that its placement in that manner might theoretically affect the reading provided by the slope meter. Further, he confirmed that he placed the slope meter at the point marked on Exhibit N-1. He also agreed that Exhibit M demonstrates that the right or passenger side tire of the claimant's vehicle "grazed the eastern edge of those culvert pipes" (Transcript 1, p. 77). Mr. Bellizzi testified that he utilized the slope meter in only one location, that is marked on Exhibit N-1. He also confirmed that in his opinion the launch point for the claimant's vehicle was the location marked on Exhibit M-2. Although the photograph appeared to depict tire prints continuing for a short distance south of the point marked on the photograph, the witness explained that the launch point reflects the location at which the claimant's vehicle began to become airborne. The launch point identified in the photograph reflects the point where two of the claimant's wheels left the ground. The remaining wheels, presumably those on the rear of the vehicle, continued somewhat south of the launch point until they too became airborne.
Mr. Bellizzi testified that when the original record plans for Interstate 87 (Exhibit A) were initially approved in 1965, the theory of a clear zone alongside highways had not yet been adopted as an industry standard. Mr. Bellizzi testified that it was not until 1977 that the American Association of State Highway and Transportation Officials (AASHTO) adopted the clear zone concept. He agreed that a culvert containing a five - foot headwall and 42 - inch pipe was installed adjacent to the west shoulder of I-87 as part of the original construction. The original culvert and headwall were removed in 1992 and replaced by the structure which existed on the date of the claimant's accident. Only the entrance to the pipe and horizontal bars covering it are visible, with the remainder of the system buried underground. Mr. Bellizzi confirmed that Exhibits CC and DD depict the top portion of the so-called "cement box", a steel grate inset in a square concrete pad, as it appeared on the date of the claimant's accident. According to the witness the structure referred to at trial as the "concrete box" is, in fact, a collection chamber. The culvert system at issue was designed so that storm water runoff would flow into the open, exposed, culvert pipe and continue in a southerly direction into the collection chamber. The water is then redirected from the collection chamber, across the southbound lanes of Interstate 87, to the center median.
Mr. Bellizzi agreed that the entrance to the culvert was designed for a maximum slope of one on six. When asked whether he was aware that the downward slope extending in a southerly direction from the collection chamber was also designed for a maximum one on six slope, the witness testified "No. No, the - it, it should be a continuous slope. In other words, to be a traversable roadside, it should be a continuous slope" (Transcript 1, p. 86). He agreed that he determined using his slope meter that the slope at the entrance to the culvert was 8 degrees, which is less than a one on six slope (9.46 degrees). Mr. Bellizzi testified that he did not believe the degree of slope of the culvert entrance was, itself, a hazard. In his view, the hazard arose from the failure to continue the slope in the area extending south from the collection chamber. In this regard, he stated the following:
"[T]he roadside should be a gradually changing, rolling terrain. Nothing abrupt. What you have here is you have a ramp. You know, it's like a skateboard park, you have a ramp that goes up, but it doesn't continue to go up. It terminates. So a car would be going up this ramp, and instead of having the traversable slope, it gets launched" (Transcript 1, p. 87).
Upon inquiry of the Court, Mr. Bellizzi testified that he did not take slope measurements with regard to the area south of the collection chamber. However, he stated that Exhibits CC and DD demonstrate that the elevation dropped in the area south of the chamber. He was then asked whether snow overlaying the culvert would affect the angle of slope. He stated that in his view the presence of snow would not affect the angle of slope of the culvert in the absence of drifting, plowing or some other disturbance. In this regard he testified that he was not aware of prevailing wind speeds prior to the happening of claimant's accident nor did he have information regarding snowplowing and salting of the roadside during the same period.
The witness testified that a vehicle at a highway speed of 65 miles per hour is traveling at 100 feet per second. Normal reaction time for a motorist reacting to an occurrence is never less than one second. In light of this circumstance, it was Mr. Bellizzi's opinion that "at the very least you have to run that angle out 150 feet to give the driver a second and a half to react" (Transcript 1, p. 93). He agreed with defense counsel's description of a clear zone as a place for an errant vehicle to either stop or recover and re-enter traffic. He also agreed that there is no proof that Mr. Langner ever applied his brakes or attempted to recover the vehicle prior to encountering the culvert.
Barbara Langner was called to the stand and testified that in January 2007 she and her husband, Alfred Langner, resided in Brooklyn, New York. Mr. Langer had been employed by the New York State Insurance Department for 38 years and he and his wife had three children and sixteen grandchildren. Mr. Langner was 63 years of age at the time of his death.
On Wednesday, January 24, 2007, Mrs. Langner and her husband left their home in Brooklyn at approximately 8 a.m. to attend the wedding of a friend's son in Montreal, Quebec, Canada. After making various stops they arrived in Montreal at approximately 4:00 p.m., took a nap at a hotel room they had rented and left for the wedding. Alcohol was not served at the wedding and the Langners had a late meal and left the event at approximately 11:00 p.m. According to Mrs. Langner, she and her husband returned to their hotel and Mr. Langner rested on the bed for approximately one-half hour prior to leaving Montreal to return home. Once in their vehicle Mrs. Langner testified "I put the seat all the way back, took a blanket, and said goodnight, and went to sleep" (Transcript 1, p. 105). Neither Mr. nor Mrs. Langner engaged their seatbelts.
The couple traveled south, crossed the international border and stopped in Plattsburgh, New York, for gas at approximately midnight. They reentered the highway and Mrs. Langner fell back asleep. The witness testified that the next thing she recalled was hearing "bang, bang, bang, bang, and then the crash, and then I remember screaming, because I broke my back" (Transcript 1, p. 107). Although he sustained a cut on his forehead, Mr. Langner appeared otherwise uninjured following the accident which Mrs. Langner testified occurred at 1:00 a.m. based on the fact that the dashboard clock of the vehicle ceased operating at that time. The vehicle had come to rest among a stand of trees and Mr. Langner was unable to open the vehicle's doors. He reassured his wife and dialed 911 on his cell phone but was unable to obtain service. The windshield had cracked during the accident and Mr. Langner unsuccessfully attempted to break the windshield using his shoe. They could hear traffic from I-87 and attempted to attract attention by yelling for help. The windows were closed and inoperable, and, even as the sun rose, none of the vehicles utilizing I-87 observed the claimant's vehicle. Mr. Langner then attempted to exit the vehicle by forcing open one of the back doors. Mrs. Langner described the circumstances as follows:
"He tried to get out again, and he got the back door open a little bit, and he got his feet out. He was maneuvering out backwards to, you know, get the feet out and then squeeze through the door, but his feet got stuck on some trees, and he couldn't move them out and he couldn't move them in" (Transcript 1, p. 111).
Mr. Langner was stuck with his feet outside the vehicle and began to complain that he was cold. He remained in that position for what Mrs. Langner described as "a number of hours. Many number of hours" (Transcript 1, p. 112). Mrs. Langner testified that her husband died at approximately 3:00 p.m. on Thursday, January 25, 2007. Help arrived at approximately 10:00 a.m. the next day.
On cross-examination the witness testified that pursuant to the tenets of their faith, men and women were separated during the wedding ceremony and reception. She testified that although she and her husband were separated, she was sure that her husband had not consumed alcohol during the event because she had discussed the lack of alcoholic beverages with her husband. Mrs. Langner estimated that she and her husband remained at the hotel approximately one-half hour before leaving to return home. She was awake during the time their vehicle passed through customs at approximately 12:00 a.m. on January 25, 2007 but was unsure exactly what time she and her husband stopped for gas in Plattsburgh, New York. Mrs. Langner testified that following their stop in Plattsburgh, she put her seat down, covered herself with a blanket and went to sleep. She again stated her recollection that following the accident the clock in the vehicle's dashboard stopped operating at 1:00 a.m.
On redirect examination, Mrs. Langner testified that she was asleep at the time the vehicle left the road and did not awaken "until I felt the bang, bang, bang" (Transcript 1, p. 119).
Following Mrs. Langner's testimony the parties stipulated that the claimant's vehicle cleared customs at approximately 12:45 a.m. on January 25, 2007. The parties further stipulated that the claimant's vehicle stopped for gas at the Plattsburgh travel station in Plattsburgh, New York, at 1:07 a.m. The claimant then rested its case and the defendant moved to dismiss based upon the testimony of claimant's expert. The Court reserved on the motion.
The defendant's first witness was New York State Police Officer Richard Hoff. Trooper Hoff testified that he began his employment with the New York State Police on November 2, 1998, and identified Exhibit EE as his curriculum vitae. He is currently assigned to the State Police Forensic Identification Unit at Troop B in Raybrook, New York. Part of his duties include participation in accident reconstructions. In this regard the witness testified that Exhibit AA is a TB-1 or collision reconstruction findings report dated January 26, 2007, which he prepared following an investigation of the claimant's accident.
Trooper Hoff testified that after responding to the scene of claimant's accident he walked throughout the area of the accident, took photographs and utilized an Electronic Total Workstation to take various measurements. In addition, the witness testified that in preparing his report he also examined the claimant's vehicle and considered statements made by witnesses. He identified Exhibit D as an aerial photograph of the north and southbound lanes of Interstate 87, including the accident site. Trooper Hoff marked the photographs to indicate the location of the accident scene (Exhibit D-1). He then identified Exhibit F as an aerial photograph depicting a closer view of the accident scene and Exhibit G as a photograph depicting a "rumble strip" along the western shoulder of I-87 south. He described a rumble strip as grooves in the pavement designed to alert drivers that their vehicle has left the designated travel lane.
Trooper Hoff characterized Exhibit H as a photograph showing the point at which the claimant's vehicle initially left the westbound shoulder of southbound I-87. He then placed arrows on Exhibit H-1 to indicate the tire prints which he observed leaving the westbound shoulder at the accident scene. The same scene is depicted on Exhibit L and L-1. Exhibit M shows the tire prints of the claimant's vehicle as well as the entrance to the culvert, which is covered by six horizontal metal bars. Trooper Hoff then marked the tire prints on Exhibit M-3 which shows the passenger side tire of the claimant's vehicle traveling through the snow and then along the eastern edge of the culvert. The witness testified that the term "tire print" refers to marks left by a tire and that the prints left by the claimant's vehicle indicated that the tires were continuously rolling through the snow. In this regard he testified that his observations of the tire prints at the scene of the accident as depicted in Exhibits N and N-2 led him to conclude "the back wheels are rolling in the same direction and the same path as the front tires" (Transcript 2, p. 34). He related that claimant's vehicle was not equipped with an antilock braking system and that had the claimant applied the brakes it should be reflected in the tire prints in that "there should definitely be either some sliding or change of that tracking path" (Transcript 2, pp. 34-35). His examination of the scene of claimant's accident revealed no evidence that the claimant had applied his brakes either on the roadway itself or while traveling across the snow surface. Trooper Hoff stated "I didn't find any indication or observe anything that would indicate that change of direction or reduction in speed" (Transcript 2, p. 37).
The witness marked Exhibit HH-1 to indicate the location of tire prints he observed at the scene. The marks supplied by Trooper Hoff come to an abrupt end several feet north of a metal grate embedded in the snow. According to Trooper Hoff, he determined using his Electronic Total Workstation that the passenger side tire of claimant's vehicle traveled 140 feet, and the driver's side tires traveled approximately 79 feet, from the edge of the paved shoulder to the point where the vehicle became airborne. He located a second set of tire prints approximately 69 feet north of the point at which the first set of tire prints ended. Once on the ground, claimant's vehicle continued another 111 feet where it came to rest in a grove of trees (Exhibit T). According to the officer, the passenger side tires of claimant's vehicle traveled along the eastern edge of the sloped entrance to the culvert and became airborne prior to encountering the "concrete box" portion of the culvert. Using a digital Smart Level the witness determined that the angle of the vehicle as it lifted off the ground was approximately 5 degrees. He estimated that claimant's vehicle was traveling approximately 79 miles per hour at the point it became airborne based upon measurements taken at the scene. He opined that due to the effect of rolling friction the speed at the point the vehicle became airborne was likely somewhat less than the speed it was proceeding prior to leaving the paved shoulder. Based primarily upon the tracking of the claimant's vehicle's tires without a change of direction or other indication that the vehicle's brakes were applied, the witness concluded that the operator was either fatigued or distracted immediately prior to the accident.
On cross-examination Trooper Hoff confirmed that he observed the interior of claimant's vehicle and that Exhibits 19, 20 and 21 accurately depict the rear seat portion of claimant's vehicle as he observed it upon arriving at the scene. Reviewing Exhibit M-3, he testified the claimant's vehicle left the paved shoulder and "gradually" moved in a westerly direction. The witness testified, as he had on direct examination, that measurements taken at the scene indicate that the passenger side tires of claimant's vehicle traveled 140 feet from the edge of the shoulder to the point at which the vehicle became airborne. He reiterated his prior testimony that the vehicle likely lost speed after leaving the paved shoulder and that he observed no flattening of the tire print or change in the tracking of the vehicle which would indicate the brakes had been applied.
The defendant next called William Logan to testify as an expert on its behalf. Mr. Logan's professional experience includes 35 years as an employee of the New York State Department of Transportation (DOT). He retired from DOT in 2005 as the Regional Traffic Engineer for DOT Region 1.
Mr. Logan testified that Exhibit A indicates the contract for the original construction of the section of I-87 where the accident occurred was awarded on August 24, 1965 and was completed on September 27, 1967. Sheet 38R, a part of Exhibit A, indicates the location where a culvert was to be installed as part of the original construction. According to Mr. Logan, the culvert installed in 1967 is in the same location as the culvert encountered by the claimant's vehicle, which was installed as part of a reconstruction project in 1992. According to sheet 14R of Exhibit A, the culvert to be installed as part of the original construction was a type F culvert composed of a headwall and 42-inch corrugated metal pipe. The original plans provided for the installation of guide rail throughout the section of highway represented on Exhibit A, including at the location where the culvert was to be emplaced.
The witness testified that Exhibit B is a portion of the plans for reconstruction of Route I- 87 at the site of claimant's accident. Sheet 28 of Exhibit B indicates that the culvert installed as part of the original construction in 1967 was to be replaced with "an L-wall at the end rather than take out the headwall and put in an L-wall" (Transcript 2, p. 81). Sheet 25 provides that the guide rail originally installed at and near the location of the culvert would be removed and disposed of. Sheet 33 provides a plan view and elevation for the culvert to be installed as part of the reconstruction. Mr. Logan testified that Exhibit N depicts the lower portion or entrance to the culvert that was installed as part of the 1992 reconstruction project. Exhibit HH depicts "the very top of the drainage structure . . . all you can see there is the top grate" (Transcript 2, p. 83). Returning to Sheet 33 of Exhibit B, Mr. Logan testified that the plans indicate the slope of the grate covering the opening to the culvert pipe as well as the slope of the embankment "leading up to the top of the box" was designed at 1:6, or one foot of vertical rise to every six feet of horizontal travel (Transcript 2, p. 84). A slope of 1:5 would, of course, be steeper than a 1:6 rise, while a 1:7 rise would be less steep. Sheet 33 also indicates that the downward slope beginning south of the concrete collection box was also designed to be 1:6 or flatter.
The witness defined the term "clear zone" as the area outside the white edge line of the highway, including the shoulder, "that is kept clear of hazards or if it can't be kept clear it's protected with some type of a rail system" (Transcript 2, p. 87). The clear zone concept was not widely accepted at the time the portion of I-87 depicted in Exhibit A was originally constructed in 1967 and was not established as a guideline by the Federal Highway Administration and State departments of transportation until the mid 1970s.
Mr. Logan testified that the photograph received as Exhibit G depicts, in part, a rumble strip or Milled-In Audible Roadside Delineator (MIARD), which produces both vibration and noise and is designed to alert drivers that they have left the designated travel lane and entered onto the paved shoulder area of a roadway. As part of his investigation, the witness determined that the distance from the inside edge of the white highway edge line to the outside or most westerly edge of the paved shoulder measured 12 feet. He went on to describe a roadside hazard as "something if you run off the road and you hit it, you're gong to do a lot of damage to your vehicle, and there's a good chance there will be injuries involved" (Transcript 2, p. 89). According to the witness, DOT has established a hierarchy for addressing hazards within a clear zone which provides that a hazard shall first be removed or, if it cannot be removed, the hazard must be made traversable. If a hazard cannot be removed or made traversable it should be shielded through the use of guide rail. Installing guide rail is at the lower end of the hierarchy "because [the] guide rail itself is a fixed object hazard located right next to the edge of pavement" (Transcript 2, p. 90). He then defined the term "traversable" as meaning "you can traverse over whatever it is you're talking about without significant injury" (Transcript 2, p. 91).
Mr. Logan stated his opinion that the culvert system installed pursuant to the 1992 reconstruction plans (Exhibit B) was traversable because "based on my measurements and inspections it was even flatter than what was required to be considered traversable" (Transcript 2, p. 91). To the extent claimant's expert determined the slope of the lower portion of the culvert system was 8 degrees, Mr. Logan stated that a slope of 8 degrees equates to one foot of vertical rise for every seven horizontal feet traveled. According to Mr. Logan, "The standard for traversable is one on six, so this is actually flatter, but I have to point out his measurement is for a four-inch distance at that spot of his arrow. That's all I can say is it's a one on seven at that one four-inch location" (Transcript 2, p. 93). In fact, the witness determined on his visits to the site that the slope of the covered opening to the culvert system is at an angle of 7 degrees which represents one foot of vertical rise for every eight feet of horizontal travel. Another measurement taken "off the grate near the very top of the grate" (Transcript 2, p. 94) measured 5.2 degrees of slope or one foot of vertical rise for every 11 feet of horizontal travel. He testified that a further measurement was taken "between the bar grate and the grate that's on the top mid-way between, and that came out 1.9 degrees, which is, you know, close to being level" (Transcript 2, p. 95). He testified that he measured the slope of the culvert entrance using a six foot level which he placed on top of the bar grate. He then placed his slope meter on top of the level to determine the slope for the entire six foot area measured. He measured the slope near the top of the grate by placing the slope meter directly on the snow adjacent to the grate without utilizing the six foot level.
The witness testified that in his opinion the culvert adjacent to the southbound lanes of I-87 was traversable because "the [AASHTO] roadside design guide . . . indicates if a slope is one on six or flatter, it's traversable, and the slopes that I measured, Mr. Bellizzi measured, were all flatter than one on six" (Transcript 2, p. 96). Because the culvert was traversable, it was Mr. Logan's opinion that guide rail was not required at the accident site. A traversable structure such as the culvert is not considered a hazard while a guide rail is, in itself, a hazard. He further stated his opinion that Mr. Bellizzi's contention that the slope created by the culvert should have been extended 150 feet beyond the concrete box portion of the culvert was unreasonable in that there was no basis for that conclusion in the New York State Design Manual. Finally, the witness testified that the culvert constructed in 1992 (Exhibit B) conformed with good and reasonable engineering standards.
On cross-examination, Mr. Logan agreed that the culvert was not safely traversed by the claimant's vehicle. He stated that he measured the width of the shoulder area of the southbound lanes of I-87 to be 12 feet wide. He did not measure the distance from the outside edge of the shoulder to the inside edge of "the latter structure itself" (Transcript 2, p. 101), referring to the entrance to the culvert system. Rather, he measured from the outside edge of the paved shoulder "to the nearest edge of the concrete box that has the grate on top of it, and that was 11 feet" (Transcript 2, p. 101). He agreed that the total distance between the edge of the travel lane and the inside or most easterly edge of the concrete box was 23 feet; a distance which places the culvert system within the 30 - foot clear zone area. He agreed that if the culvert was determined to be a non-traversable hazard it would be subject to the DOT hierarchy requiring removal, amelioration, relocation or the use of guide rail. He agreed that the use of guide rail is a proper method to guard motorists against a non-traversable hazard within a clear zone.
Mr. Logan testified that at his final visit to the site on March 31, 2011 he measured the slope at the covered opening to the lower portion of the culvert (8% or 1:7) as well as "in the snow just to the side of that slope grade, right near its top" (5.2% or 1:11) and also "near the top and in between the two grates" (1.9%) (Transcript 2, pp. 104-105). According to sheet 33 of Exhibit B, the slope of the covered entrance to the culvert was designed at a ratio of 1:6. Cross-examination concluded with the witness again agreeing that if the culvert system in place at the accident site constituted a non-traversable hazard within the clear zone it would have to be moved or guarded against in some manner.
On redirect examination Mr. Logan testified that sheet 24 of Exhibit A demonstrates that the culvert system installed when this portion of I-87 was originally constructed in 1967 included an exposed six - foot, six - inch type F headwall, which constituted a fixed object within the clear zone requiring installation of guide rails at that location. Installation of the new culvert in 1992 converted the headwall from a fixed object to a "traversable object" (Transcript 2, p. 109). Mr. Logan concluded his testimony by explaining the transformation from fixed object to traversable object in the following colloquy with the Court:
"THE COURT: What was the differential in height after the removal of the six-foot, six-inch headwall in 1992? In other words, you had a six-foot, six-inch headwall, which you indicate would have been considered a fixed object if within the clear zone, correct?
MR. LOGAN: That's correct. That's a flat, concrete wall that if someone went off the road, they would slam into a six-foot concrete wall and not rounded or anything. It's just a flat wall.
THE COURT: Exposed.
MR. LOGAN: Exposed.
THE COURT: Okay, and so what happened in 1992 to change that circumstance?
MR. LOGAN: That wall was taken out, a concrete box was put in, the culverts were connected to that concrete box. Everything was covered over with earth at a certain slope, and a grate was put over the inlet of the culvert that ran along the ditch line. All that went on six or flatter" (Transcript 2, pp. 109-110).
Prior to the start of trial, defendant moved to preclude claimant from introducing evidence of pecuniary loss in support of the wrongful death cause of action and for dismissal of the decedent's pain and suffering cause of action as untimely. The preclusion motion was granted based on the undisputed contention that claimant failed to respond to defendant's discovery requests for various financial documents and other information relating to pecuniary loss to the decedent's distributees (Transcript 1, pp. 3-15). Damage awards in wrongful death actions are statutorily limited to "fair and just compensation for the pecuniary injuries resulting from the decedent's death" (EPTL 5-4.3 [a]; Gonzalez v New York City Hous. Auth., 77 NY2d 663, 667 [1991]; Farrar v Brooklyn Union Gas Co., 73 NY2d 802, 804 [1988]). As the Court of Appeals made clear in Ratka v St. Francis Hosp., (44 NY2d 604, 609 [1978]):
"A personal injury action is for conscious pain and suffering of the decedent prior to his death. This contrasts with a wrongful death action for pecuniary injuries resulting from decedent's death and certain expenses. The recovery for conscious pain and suffering accrues to the decedent's estate, whereas the damages for wrongful death are for the benefit of the decedent's 'distributees' who have suffered 'pecuniary injury' " (see also Heslin v County of Greene, 14 NY3d 67 [2010]).
Inasmuch as the wrongful death claim is limited to pecuniary loss to the decedent's next of kin, the preclusion of proof relating thereto is fatal to this cause of action. Claimant's wrongful death cause of action is therefore dismissed.
Unlike wrongful death claims which are governed by Court of Claims Act § 10 (2) and must be filed and served within 90 days after the appointment of an estate representative, personal injury claims are governed by Court of Claims Act § 10 (3) which requires that a claim (or notice of intention to file a claim) be filed and served within 90 days "after the accrual of such claim"(Barrett v State of New York, 161 AD2d 61, 64 [1990], affd 78 NY2d 1111 [1991]; Pelnick v State of New York, 171 AD2d 734 [1991]; DeFilippis v State of New York, 157 AD2d 826 [1990]; Kaplan v State of New York, 152 AD2d 417 [1989]). Because these time limitations are jurisdictional conditions precedent to the maintenance of an action against the State, they are strictly construed and not subject to the CPLR tolling provisions (see e.g. Pelnick, supra; DeFilippis, supra; Kaplan, supra). Thus, the tolling provision of CPLR 210 (a), which permits the commencement of a survival actionby an estate representative within one year after the decedent's death, may not be used to extend the time limitations for filing and service of a claim in the Court of Claims (id.). In reaching this conclusion in Kaplan, the Appellate Division, Third Department, explained: "While our holding may appear unyielding, it should be kept in mind that Court of Claims Act § 10 (6) permits claimants to apply for permission to file a late claim and, further, that the mere filing of a notice of intention within 90 days of the injury extends the 90-day limitation for a period of two years after the accrual of the claim" (id. at 419-420; cf. Tooks v State of New York, 40 AD3d 1347 [2007] [although valid notice of intention to file a claim may be served before the appointment of an estate representative, claimant failed to serve the claim within two years of the date the causes of action for pain and suffering and wrongful death accrued]). The instant personal injury claim accrued on the date of the accident, January 25, 2007. However, neither a notice of intention nor a claim was served within 90 days thereafter. Defendant asserts that the notice of intention to file a claim was not served until February 4, 2008, more than one year after the date the accident occurred. The claim was served upon the Attorney General on March 14, 2008 and filed with the Court on March 18, 2008. The defense that the claim for decedent's pain and suffering was untimely was raised in defendant's answer as its fifth affirmative defense with sufficient particularity to avert waiver (see Court of Claims Act § 11 [c]). In opposition to defendant's dismissal motion, claimant failed to refute the assertion that neither a claim nor a notice of intention to file a claim was served within 90 days after the personal injury claim accrued.As a result, the personal injury claim must be dismissed as untimely.
EPTL § 11-3.2 (b) states that "[n]o cause of action for injury to person . . . is lost because of the death of the person in whose favor the cause of action existed . . ." Such a "survival" action may be brought only by a duly appointed estate representative (Lichtenstein v State of New York, 93 NY2d 911 [1999]).
A prior claim on behalf of the decedent and his wife served in November 2007 was dismissed as untimely and claimant's cross- motion for late claim relief was denied (see Langner v State of New York, 65 AD3d 780 [2009]). Although the Appellate Division referenced a January 2008 notice of intention to file a claim (65 AD3d at 781, 784 n 1 and n 3, respectively), this notice has not been provided to the Court and, in any event, was not served within 90 days after the accrual of the claim for conscious pain and suffering (see Barrett v State of New York, 161 AD2d 61, 64 [1990], affd 78 NY2d 1111 [1991]; Pelnick v State of New York, 171 AD2d 734 [1991]; DeFilippis v State of New York, 157 AD2d 826 [1990]; Kaplan v State of New York, 152 AD2d 417 [1989]).
Even considering the merits of the claim, however, dismissal would nonetheless be required. The Court of Appeals made clear in the seminal case of Weiss v Fote (7 NY2d 579 [1960]) that while the anachronistic concept of sovereign immunity lost its legal force and effect with the passage of the Court of Claims Act, the State retained its immunity for highway planning decisions involving the exercise of expert judgment (see also Joyce v State of New York, 152 AD2d 306 [1989]). The Court explained that "[t]o accept a jury's verdict as to the reasonableness and safety of a plan of governmental services and prefer it over the judgment of the governmental body which originally considered and passed on the matter would be to obstruct normal governmental operations and to place in inexpert hands what the Legislature has seen fit to entrust to experts" (Id. at 585-586). Thus, while the State has a nondelegable duty to maintain its highways in a reasonably safe condition (Friedman v State of New York, 67 NY2d 271, 283 [1986]), its liability is "limited by the fact that in the field of traffic design engineering, it is accorded a qualified immunity which can only be overcome with proof that a highway planning decision evolved without adequate study or lacked a reasonable basis" (Zecca v State of New York, 247 AD2d 776, 777 [1998]). The burden of proving that a highway safety plan evolved without adequate study or lacked a rational basis rests with the claimant (Redcross v State of New York, 241 AD2d 787, 789 [1997]; see also Buhr v State of New York, 295 AD2d 462, 463 [2002]; Dumond v State of New York, 259 AD2d 1033 [1999]; Light v State of New York, 250 AD2d 988, 989 [1998]; Galvin v State of New York, 245 AD2d 418, 419 [1997]). Thus, "liability for injury arising out of the operation of a duly executed highway safety plan may only be predicated on proof that the plan either was evolved without adequate study or lacked reasonable basis"(Weiss at 589). To meet this burden claimant must proffer "something more than a mere choice between conflicting opinions of experts" (Weiss at 588). Rather, claimant must establish "not merely that another option was available but also that the plan adopted lacked a reasonable basis" (Affleck v Buckley, 96 NY2d 553, 557 [2001]).
The facts adduced at trial in the instant matter establish that the drainage culvert which allegedly "launched" the decedent's vehicle into the woods was designed and installed in accordance with the record plans (Exhibit B). Even the claimant's expert's measurement of the northerly section of the slope of the culvert revealed that the rate or percentage of incline was consistent with the plans. In fact, the slope was flatter than that called for in the plans. The problem, according to claimant's expert Mr. Bellizzi, lies not in the degree of the slope, but in the fact that the upward slope did not extend sufficiently to enable a vehicle to come to a safe stop without encountering the launching effect alleged here (Transcript 1, p. 87, 89). On this basis, Mr. Bellizzi characterized the drainage culvert as a "roadside hazard" (Transcript 1, p. 66). He then explained that there are three ways to address and ameliorate a roadside hazard located within the 30-foot clear zone: relocate the hazard, re-design the hazard, or install a guide rail (Transcript 1, p. 67).
Initially, the Court is unpersuaded that the drainage culvert constituted a roadside hazard. Mr. Bellizzi's conclusion in this regard was wholly unsupported by reference to industry practices or standards and, in the Court's view, is devoid of evidentiary value for this reason (see e.g. Diaz v New York Downtown Hosp., 99 NY2d 542, 544 [2002] ["Where the expert's ultimate assertions are speculative or unsupported by any evidentiary foundation, . . . the opinion should be given no probative force"]; Amatulli v Delhi Constr. Corp., 77 NY2d 525, 533 n 2 [1991] ["where the expert states his conclusion unencumbered by any trace of facts or data, his testimony should be given no probative force whatsoever . . . Indeed, no reason is apparent why his testimony should not simply be stricken"] [internal quotation marks and brackets omitted]). Although claimant's expert testified that the concept of maintaining a clear zone adjacent to State highways was adopted by DOT prior to replacement of the original culvert in 1992, he made no mention of specific design criteria or standards applicable at that time to the placement and construction of roadside culverts, nor the manner in which the defendant failed to comply therewith. Mr. Logan, on the other hand, testified that the drainage culvert in issue conformed with accepted engineering practices (Transcript 2, pp. 97-98). He testified in this regard that the culvert was traversable, i.e., not a roadside hazard, "based on the [AASHTO] roadside design guide that indicates if a slope is one on six or flatter, it's traversable, and the slopes that I measured, Mr. Bellizzi measured, were all flatter than one on six" (Transcript 2, p. 96).
With respect to Mr. Bellizzi's proposed alternative design, he opined that the incline of the drainage culvert should have been extended a sufficient distance to allow a vehicle to come to a safe stop. Initially in this regard, Mr. Bellizzi testified that the incline of the culvert should have been designed to continue for at least one car length (Transcript 1, p. 86). However, this opinion was one which Mr. Bellizzi admittedly had not given much consideration. Mr. Bellizzi testified in this regard: "I just threw that out, I said it has to be at least the length of the car. It has to be more" (Transcript 1, p. 92). How much more was a question Mr. Bellizzi attempted to answer by reference to a vehicle traveling at a speed of 65 miles per hour or one hundred feet per second (Transcript 1, p. 93). On this basis, he concluded that the upward slope of the culvert should have been designed to continue for a distance of 150 feet (Id. at 93). No industry standards or customary practice in the field of highway design were offered to support this opinion (see e.g. Diaz v New York Downtown Hosp., supra; Amatulli v Delhi Constr. Corp., supra; Jones v City of New York, 32 AD3d 706 [2006]). While claimant's expert testified that prevailing standards at the time the culvert was installed incorporated the concept of a clear zone area extending 30 feet from the edge of a highway shoulder, he cited no engineering standards or practices to support the proposition that the slope of the culvert should have been extended 150 feet, a distance which would extend the defendant's duty and consequent liability well outside the recognized boundary of the clear zone.
The need for the installation of a guide rail, the least favored option for avoiding the dangers posed by a roadside hazard, hinges, of course, on the threshold conclusion that the slight incline of the culvert in fact constituted such a hazard. As previously stated, no such conclusion may be reached here. On the whole, claimant failed to establish, as was his burden, that the design and installation of the culvert without a guide rail was plainly inadequate or lacked a reasonable basis (cf. Alexander v Eldred, 63 NY2d 460 [1984]). Claimant simply failed to present any evidence in this regard. Moreover, while it is true that "after the State implements a traffic plan it is 'under a continuing duty to review its plan in the light of its actual operation' " (Friedman v State of New York, supra 67 NY2d at 284, quoting Weiss v Fote, 7 NY2d at 587), no evidence was presented which would support the conclusion that this duty was breached. There was no evidence of prior accidents involving the culvert or any other similarly designed drainage structure. As a result, the Court cannot conclude that the defendant should have been alerted to the need for remedial action (see Friedman v State of New York, supra 67 NY2d at 284; Light v State of New York, supra 250 AD2d 988, 990 [1998]). Defendant, on the other hand, established through the testimony of Mr. Logan that the determination to remove the guide rail, which is itself a hazard, following replacement of the above-ground six-foot concrete headwall with a below-ground concrete box was based on sound engineering practice (see Transcript 2, pp. 96-98; Galvin v State of New York, supra 245 AD2d 418; Kissinger v State of New York, 126 AD2d 139 [1987]).
Claimant's expert's opinion that the culvert structure should have been designed differently or a guide rail installed presents this Court with nothing more than a choice between conflicting expert opinions. Having failed to establish by a preponderance of the evidence that the design of the drainage structure was plainly inadequate or lacked a reasonable basis, claimant failed to overcome defendant's qualified immunity (see Weiss v Fote, supra; Zecca v State of New York, supra). Since it is not the function of this Court to substitute its views for those of professionals in the area of highway design, dismissal of the claim is required.
Inasmuch as claimant was precluded at trial from presenting proof of pecuniary loss to the decedent's distributees, the wrongful death cause of action is dismissed. Defendant's motion to dismiss the personal injury cause of action as untimely is granted, and the claim is, accordingly, dismissed. All other motions not otherwise decided herein are denied.
Let judgment be entered accordingly.
October 24, 2011
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims