Opinion
2013-04-26
Deborah E. MARROW, Individually and as Administratrix of the Estate of Anthony L. Marrow, Deceased, Claimant–Appellant, v. STATE of New York, Defendant–Respondent. (Claim No. 111701.)
Hogan Willig, PLLC, Getzville (John B. Licata Of Counsel), for Claimant–Appellant. Eric T. Schneiderman, Attorney General, Albany (Kathleen M. Arnold of Counsel), for Defendant–Respondent.
Hogan Willig, PLLC, Getzville (John B. Licata Of Counsel), for Claimant–Appellant. Eric T. Schneiderman, Attorney General, Albany (Kathleen M. Arnold of Counsel), for Defendant–Respondent.
PRESENT: CENTRA, J.P., FAHEY, CARNI, LINDLEY, AND WHALEN, JJ.
MEMORANDUM:
Claimant commenced this wrongful death action individually and as administratrix of the estate of Anthony L. Marrow (decedent), seeking damages for the fatal injuries sustained by decedent when a vehicle that was entering the adjacent highway from an entrance ramp struck decedent's motorcycle as the motorcycle was traveling on the highway. The driver of the vehicle who struck the motorcycle (driver) lost control of her vehicle after driving onto the shoulder of the entrance ramp as she rounded a curve. At trial, claimant sought to establish that the driver lost control of her vehicle due to the negligence of defendant in not repaving the entire shoulder of the entrance ramp, which resulted in a 2 1/2-inch drop-off in the middle of the shoulder.
We note at the outset that claimant appeals from a decision dismissing her claim after a nonjury trial, but no appeal lies from a decision ( see Pecora v. Lawrence, 28 A.D.3d 1136, 1137, 816 N.Y.S.2d 772). We exercise our discretion, however, to treat the notice of appeal as valid and deem the appeal as taken from the judgment entered upon the decision ( seeCPLR 5520 [c]; Brown v. State of New York, 79 A.D.3d 1579, 1581, 914 N.Y.S.2d 512).
Initially, we agree with claimant that the Court of Claims erred insofar as it determined that defendant was entitled to qualified immunity. Under the doctrine of qualified immunity, “a governmental body may be held liable when its study of a traffic condition is plainly inadequate or there is no reasonable basis for its traffic plan” ( Friedman v. State of New York, 67 N.Y.2d 271, 284, 502 N.Y.S.2d 669, 493 N.E.2d 893;see Weiss v. Fote, 7 N.Y.2d 579, 589, 200 N.Y.S.2d 409, 167 N.E.2d 63,rearg. denied8 N.Y.2d 934, 204 N.Y.S.2d 1025, 168 N.E.2d 857;Kosoff–Boda v. County of Wayne, 45 A.D.3d 1337, 1338, 845 N.Y.S.2d 612). Here, defendant did not raise the defense of qualified immunity in its answer to the claim or at trial ( cf. Brown, 79 A.D.3d at 1580, 914 N.Y.S.2d 512) and, in any event, defendant failed to establish that the decision to armor coat the entrance ramp and only part of the shoulder, rather than to resurface the entrance ramp including the entire shoulder, resulted from any study. Indeed, defendant's expert admitted that there was no “plan” with respect to that decision, and we thus conclude that defendant failed to establish that the qualified immunity doctrine is applicable.
In the alternative, the court concluded that the drop-off was not an unreasonably dangerous condition and, further, that the drop-off was not a proximate cause of the accident. Contrary to claimant's contention, we conclude that the verdict is not against the weight of the evidence ( see Garofalo v. State of New York, 17 A.D.3d 1109, 1110, 794 N.Y.S.2d 269,lv. denied5 N.Y.3d 707, 801 N.Y.S.2d 800, 835 N.E.2d 660;Ring v. State of New York, 8 A.D.3d 1057, 1057, 778 N.Y.S.2d 396,lv. denied3 N.Y.3d 608, 785 N.Y.S.2d 26, 818 N.E.2d 668). “When the State or one of its governmental subdivisions undertakes to provide a paved strip or shoulder alongside a roadway, it must maintain the shoulder in a reasonably safe condition for foreseeable uses, including its use resulting from a driver's negligence” ( Bottalico v. State of New York, 59 N.Y.2d 302, 304, 464 N.Y.S.2d 707, 451 N.E.2d 454;see Stiuso v. City of New York, 87 N.Y.2d 889, 891, 639 N.Y.S.2d 1009, 663 N.E.2d 321). The court credited the testimony of witnesses that the 2 1/2-inch drop-off was considered “reasonably safe” under the New York State Department of Transportation Highway Maintenance Guidelines. The court's determination that the drop-off did not constitute a dangerous condition is thus supported by the record ( cf. Sevilla v. State of New York, 111 A.D.2d 1046, 1047–1048, 490 N.Y.S.2d 351).
In addition, the court's determination that the drop-off was not a proximate cause of the accident and that, instead, the sole proximate cause of the accident was the driver's negligence is also supported by the record ( see McCauley v. State of New York, 8 N.Y.2d 938, 940, 204 N.Y.S.2d 174, 168 N.E.2d 843,rearg. denied8 N.Y.2d 1157, 209 N.Y.S.2d 1026, 171 N.E.2d 912). Defendant's expert testified that it would not have been a problem for a vehicle to mount the drop-off and return to the roadway. He explained that the driver here had turned the wheel of her vehicle sharply to the right to return to the roadway and then turned the wheel sharply to the left in an attempt to recover control of her vehicle. As a result of her sharp turns, the vehicle appeared to be “fishtailing,” which is consistent with the observation of the various witnesses. It is also consistent with the driver's statement that she had tried to steer but did not use her brakes. The opinion of defendant's expert that the driver's reaction was due to inexperience and panic was supported by the testimony of the police investigators that the driver had overcorrected her steering and lost control of her vehicle. We reject the contention of claimant that the court could not consider the driver's inexperience in making its proximate cause determination ( see Ether v. State of New York, 235 A.D.2d 685, 686, 651 N.Y.S.2d 752). Further, we note that, although claimant's expert testified that the driver encountered a “scrubbing” hazard when she drove onto the shoulder and that the drop-off played a role in causing the accident, defendant's expert refuted that testimony by asserting that there was no scrubbing re-entry onto the roadway. The court credited the testimony of defendant's expert inasmuch as it concluded that there was no physical evidence that the driver encountered a scrubbing hazard, and we defer to that credibility determination ( see Ring, 8 A.D.3d at 1057, 778 N.Y.S.2d 396). We therefore conclude that the record supports the court's determination that the driver's negligence in failing to maintain control of her vehicle was the sole proximate cause of the accident ( see Schwartz v. New York State Thruway Auth., 95 A.D.2d 928, 929, 463 N.Y.S.2d 941,affd.61 N.Y.2d 955, 475 N.Y.S.2d 271, 463 N.E.2d 612).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.