Opinion
123824
08-03-2018
Shakilla NOORZI, As Administratrix of the Estate of Ata Noorzi a/k/a Ata U. Noorzi a/k/a Ata Ullah Noorzi, Claimant, v. The STATE of New York, Defendant. Rebecca Sheehan, as Executrix of the Estate of John Patrick Sheehan, Rebecca Sheehan, individually, as the spouse of John Patrick Sheehan, deceased, George Sheehan, as son of John Patrick Sheehan, deceased, Thaddeus Sheehan, as son of John Patrick Sheehan, deceased and Rebecca Sheehan, as mother and natural guardian of Nathaniel Sheehan, an infant, son of John Patrick Sheehan, deceased, Claimants, v. The State of New York, Defendant.
For Claimant: LATOS LATOS & ASSOCIATES, P.C., By: Marina Zapantis, Esq. (Claim No. 123824), BLOCK, O'TOOLE & MURPHY, LLP, By: Daniel P. O'Toole, Esq., David L. Scher, Esq. (Claim No. 124666) For Defendant: HON. BARBARA D. UNDERWOOD, Attorney General for the State of New York, By: Cheryl Rambeau, Assistant Attorney General Felice Torres, Assistant Attorney General.
For Claimant: LATOS LATOS & ASSOCIATES, P.C., By: Marina Zapantis, Esq. (Claim No. 123824), BLOCK, O'TOOLE & MURPHY, LLP, By: Daniel P. O'Toole, Esq., David L. Scher, Esq. (Claim No. 124666)
For Defendant: HON. BARBARA D. UNDERWOOD, Attorney General for the State of New York, By: Cheryl Rambeau, Assistant Attorney General Felice Torres, Assistant Attorney General.
Walter Rivera, J.
These claims arise out of a motor vehicle accident that occurred on the morning of November 9, 2013 on the Hutchinson River Parkway ("HRP") when the driver of an SUV traveling northbound lost control of the vehicle. The SUV jumped the curb and penetrated the guiderail on the northbound side of the median, vaulted into the air, and struck the upper portion of the guiderail on the southbound side of the median. The SUV flipped over and landed upside down in the southbound lanes of traffic. The SUV was then struck by a southbound vehicle and both occupants of that vehicle were killed. Claimants allege that the State was negligent when, during the course of its signage improvement project in 2003, the State failed to replace the existing guiderails with a concrete barrier that claimants argue would have prevented the errant SUV from crossing over the median and into the oncoming southbound lanes of traffic. The State, on the other hand, argues that because its signage improvement project was a limited scope project and not a reconstruction project, the State was not under a duty to replace the guiderails with a concrete barrier unless there was a history of crossover accidents or proof that the guiderails posed a foreseeably dangerous condition. The State further argues that its planning decisions regarding the signage improvement project and its decision not to replace the guiderails with a concrete barrier are cloaked with a qualified immunity. Finally, the State argues that the negligence of the driver of the SUV was the sole proximate cause of the accident.
By Stipulation so ordered by Hon. Thomas H. Scuccimarra on February 18, 2015, the parties agreed that the claims be tried jointly on the issue of liability.
The undisputed facts are as follows. The accident occurred on November 9, 2013 at 7:08 a.m. when John F. Osorio was driving a Ford Explorer SUV northbound on the HRP in excess of the posted 50 mph speed limit and lost control of the SUV as he approached the Orchard Beach overpass near exit 5. The SUV jumped the curb and penetrated the guiderail on the northbound side of the median, vaulted into the air, and struck the upper portion of the guiderail on the southbound side of the median. The SUV flipped over and landed upside down in the southbound lanes of traffic on the HRP. A Lincoln Town Car livery cab driven by Ata U. Noorzi with John Patrick Sheehan as the rear seat passenger struck the SUV and Noorzi and Sheehan died at the scene. Osorio sustained no injuries. It is also undisputed that the guiderails and the curbing on the median met the applicable standards at the time of their installation by the State in 1962 and that, in the 10-year accident history submitted by the parties, there was not one crossover accident in the area of the accident (T:722-726, 731-732; Ex. Z, p 28; Ex. 12; Ex. 15, p 29; Ex. 27, Ex. 28).
References to the trial transcript are proceeded by the letter "T."
Claimants' witness, Bruce Ogurek, a former New York State Department of Transportation construction supervisor, testified that the HRP was part of an "unbuilt" arterial highway system under the jurisdiction of the City of New York (T:185-186). As such, the City of New York, and not the State, was responsible for everything under its jurisdiction including maintenance, repair and capital improvements on the HRP, which would include the installation of barriers, if needed (T:75, 83, 185-186). The signage improvement project was a limited scope project by the State to install new signs in the area of the accident; it was not a reconstruction or significant repair project addressing the roadway, the median or the guiderails (T:186-187).
At the time of the trial, there was a pending action filed by claimants in Supreme Court, Bronx County, against the City of New York, the driver and the owner of the SUV (Sheehan v. City of New York , Sup Ct, Bronx County, Index No. 23108/14).
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The critical issue in this case is whether the State was under a duty to install a concrete barrier during the course of its signage improvement project in 2003. The law is clear that there is no duty to upgrade guiderails or to replace them with concrete barriers to meet the safety standards which evolved after the installation of the guiderails, unless the State undertook a significant repair or reconstruction of the area or the State had notice that the area was unreasonably dangerous ( Vizzini v. State of New York , 278 AD2d 562, 563 [3d Dept 2000] ["(t)he State is not required to undertake expensive reconstruction of highways simply because the design standards for highways have been upgraded since the time of original construction"] ). In this matter, claimants do not dispute that the State's signage improvement project of 2003 was a limited scope project. Indeed, claimants' own expert, Richard Balgowan, conceded on cross-examination that the signage improvement project was not a reconstruction project (T:519-521). Therefore, the State was not under a duty to upgrade that area to meet the safety standards that evolved after the construction of the area. Claimants' expert further conceded that the Fixed Object Study of 2005 (Ex. 19) did not reveal any substandard features with the median or the guiderails and did not recommend the installation of a concrete barrier (T:524-525, 533). The Court accorded the testimony of defendant's expert, Nicholas Pucino, significant weight given his vast experience with highway engineering, guiderails and highway barrier protection. Contrary to claimants' arguments, the Court did not find Pucino to be biased; rather, the Court found him to be credible and persuasive. In particular, the Court credited Pucino's testimony regarding the scope of the signage improvement project and that the installation of a concrete barrier was not warranted. The Court also credits the testimony of Sonia Pichardo, Regional Director for Region 11 of the New York State Department of Transportation, that the signage improvement project was an "element specific project" (T:284).
Claimants argue that the excavation and reconstruction of the median and the replacement of 254 feet of guiderail within this limited scope project provided the State with an opportunity to replace the guiderails with a concrete barrier and that this opportunity triggered the State's duty to meet the safety standards of the day in this particular area. Claimants' argument is faulty because the focus of the limited scope project was signage improvement and not a modernization of the median or the roadway (see Benjamin v. State of New York , 203 AD2d 629, 630 [3d Dept 1994] ["(t)here is nothing in the record which indicates that the project constituted a modernization or correction of the road, which is the sine qua non of a reconstruction project"] ). Merely because the median was excavated and the guiderails were replaced in that area did not transform the State's limited scope project into a significant repair or reconstruction which would trigger a duty upon the State to modernize the area by installing a concrete barrier to meet the applicable standards of the day (see Fan Guan v. State of New York , 55 AD3d 782, 784-785 [2d Dept 2008] ["(t)he replacement of the median, the repaving of the road surface, and the improvements made to the drainage system did not materially alter the roadway itself and did not constitute significant repair or reconstruction such that compliance with modern highway design standards was required"] ). The law does not construe a mere opportunity to upgrade as an obligation to upgrade. Rather, the law states that "compliance with design standards adopted after the construction of a highway is not required unless the municipality undertakes significant repair or reconstruction that would provide an opportunity for compliance with the new standards [emphasis added]" ( Guzov v. State of New York , 48 AD3d 751, 752 [2d Dept 2008], quoting Cave v. Town of Galen , 23 AD3d 1108, 1108-1109 [4th Dept 2005] ). The opportunity to upgrade must arise in conjunction with a significant repair or reconstruction (see Guzov , 48 AD3d 751 ). "Nor is there any requirement that a municipality undertake such reconstruction to provide an opportunity to comply with new safety standards" ( Hay v. State of New York , 60 AD3d 1190, 1191 [3d Dept 2009] ). Thus, while the State may have had an opportunity in 2003 to replace the guiderails with a concrete barrier, it did not have an obligation to do so or a duty to provide the public with "more complete protection" ( Schwartz v. New York State Thruway Auth. , 61 NY2d 955, 957 [1984], quoting Weiss v. Fote , 7 NY2d 579, 584 [1960] ).
Claimants argue that the State created a dangerous condition at the median and that therefore claimants need not establish that the State had notice of a dangerous condition. This argument is unavailing. Proof of prior accidents at the same place and under substantially similar circumstances may be offered to establish a foreseeability of danger and notice to the State and it was incumbent upon claimants to offer such evidence (see Fan Guan , 55 AD3d at 783 [State was not on constructive notice of dangerous condition given the high volume of traffic and low number of accidents]; Racalbuto v. Redmond , 46 AD3d 1051, 1052 [3d Dept 2007] [one dissimilar accident at the same location in 11 years does not put the municipality on notice of a dangerous condition which needs to be addressed]; Chunhye Kang-Kim v. City of New York , 29 AD3d 57, 60 [1st Dept 2006] [it was incumbent upon plaintiff to show prior similar accidents at the site to establish notice to the municipality]; Martin v. State of New York , 305 AD2d 784 [3d Dept 2003] [the number of accidents was well below the State average; prior accident history was insufficient to put defendant on notice of a dangerous condition or impose a duty to take remedial action]; Vizzini , 278 AD2d at 563 [culvert was not rendered defectively designed as a result of the change in design standards since its construction and without a history of similar accidents, the State was not put on notice for need of reconstruction or remediation of culvert] ). Absent proof of a dangerous condition, the State is not required to upgrade any roadway to conform to new standards which evolved subsequent to the original construction (see Merino v. New York City Tr. Auth. , 218 AD2d 451 [1st Dept 1996], affd 89 NY2d 824 [1996] ; Trautman v. State of New York , 179 AD2d 635, 636 [2d Dept 1992] [State has no duty to rebuild to conform to standards which evolved subsequent to construction] ).
In this matter, the record is devoid of any evidence of prior crossover accidents or any other indication that the accident location was unreasonably dangerous and that defendant had notice of a condition that required replacement of the guiderails with a concrete barrier (see Gagliardi v. State of New York , 148 AD3d 868 [2d Dept 2017] [claimant failed to demonstrate that the State had prior notice that the guiderail constituted a dangerous condition at the accident site]; Epstein v. State of New York , 124 AD2d 544, 549 [2d Dept 1986] [notice to State of a foreseeably dangerous condition was not established where there was no evidence of any prior crossover accidents with a car vaulting over the guiderail] ).
Thus, the Court finds that claimants have failed to meet their burden of establishing that the State had a duty to replace the guiderails with a concrete barrier. Absent a duty, there can be no breach (see Chunhye Kang-Kim , 29 AD3d at 60 [the initial and dispositive issue was whether the municipality had a duty to erect a barricade or higher curb at the accident site] ). Moreover, a municipality will not be held liable for a breach of duty unless the breach was a proximate cause of the accident (see Lindquist v. County of Schoharie , 126 AD3d 1096 [3d Dept 2015] ; Van De Bogart v. State of New York , 133 AD2d 974 [3d Dept 1987] [State did not breach duty of care which contributed to cause of accident] ). Accordingly, since no breach of duty was established, the Court need not reach the issue of whether the guiderails or the absence of a concrete barrier was a proximate cause of the accident.
Assuming, arguendo, that proximate cause was at issue, the Court carefully considered all the evidence presented by the parties regarding proximate cause. A municipality is not an insurer of the safety of its roadways and the mere happening of an accident does not render the municipality liable (see Tomassi v. Town of Union , 46 NY2d 91 [1978] ; Brooks v. New York State Thruway Auth. , 73 AD2d 767 [3d Dept 1979], affd 51 NY2d 892 [1980] ). Moreover, "[s]omething more than a mere choice between conflicting opinions of experts is required before the State or one of its subdivisions may be charged with a failure to discharge its duty to plan highways for the safety of the traveling public" ( Weiss , 7 NY2d at 588 ). In the case at bar, the conflicting expert testimony was inconclusive given the suspect testimony of Osorio, the driver of the SUV, who admittedly lied to the police officer who prepared the accident report and was otherwise shown to be of questionable character with a motivation to be less than truthful (see Newland v. State of New York , 205 AD2d 1015 [3d Dept 1994] [Court of Claims findings are entitled to some deference because of the advantage of observing the witnesses testify and being in a better position to assess the evidence and weigh credibility] ). Specifically, Osorio testified that on the night before the accident he had dinner in Queens with a female friend who was not his wife. Thereafter, at approximately 9:00 to 10:00 p.m., he and the woman drove to a secluded area and remained together in the vehicle until the next morning. At his deposition, Osorio did not mention getting any sleep in the SUV; however at trial, he testified that he had slept "a little bit" (T:349). When confronted with this discrepancy and asked whether "a little bit" meant no more than three hours, he responded, "something like that I don't remember very well" (T:352). At approximately 6:00 a.m. Osorio drove the woman home and then rushed to be at his home with his wife and children in White Plains by 8:00 a.m. (id. ). He proceeded onto the HRP, a road he was admittedly familiar with, yet he claimed to be unaware of the posted speed limit as he testified that he traveled at a speed of 55 to 60 mph, which was in excess of the 50 mph speed limit (T:340, 342, 353). As he drove in the right lane of the three-lane highway, he purportedly observed an animal in the roadway before the Orchard Beach overpass and attempted to avoid hitting the animal. He testified that, "I tried to brake a little but at that moment, I lost control of the vehicle" (T:342). He also testified that he applied "strong" continuous pressure to his brakes, but the distance was too short to enable him to stop the SUV before hitting the guiderail on the northbound side of the median (T:345-346, 354-355). When confronted with his deposition testimony that he was applying his brakes "a little" (T:355), he stated at trial that his deposition testimony was accurate in that he initially applied his brakes "a little" and then he "went stronger" as the SUV moved toward the guiderail (id. ). He stated that he swerved to the left and made several rights and lefts before hitting the guiderail in a matter of five seconds.
Osorio admitted on cross-examination that he lied about his whereabouts to his wife and to the police officer who filled out the accident report (T:355-356). It was also elicited on cross-examination that Osorio's New York Driver's License and his Rhode Island Driver's License were both expired at the time of the accident; Osorio testified that he did not remember when his New York Driver's License had expired (T:347-348). He also conceded that he had a prior conviction of driving while impaired "many years ago" (T:353). The paramedic who responded to the scene of the accident reported that Osorio smelled of alcohol (id. ). Osorio pled guilty to speeding and driving while impaired due to having consumed alcohol and was sentenced to four-years probation (T:357).
The extent of Osorio's testimony and his lack of credibility with the Court undermines the opinion of the claimants' expert, Steven Becker, regarding proximate cause based upon Becker's speculations as to Osorio's speed, braking, the extent of the SUV's yaw, the angle of impact, and Osorio's manner of driving (see Sangirardi v. State of New York , 205 AD2d 603 [2d Dept 1994] [evidence was insufficient to show that State's failure to remove or lower curb near median guiderail was a substantial factor in causing the crossover vehicle to vault over the guiderail and impact with claimants' oncoming vehicle resulting in the death of both occupants of the vehicle] ).
Additionally, Osorio was obligated to operate the SUV at a rate of speed and in such a manner of control as to avoid an accident (see Woolley v. Coppola , 179 AD2d 991, 992 [3d Dept 1992] ). Even if it is believed that Osorio lost control of the SUV due to his attempt to avoid hitting an animal, Osorio had a duty to keep a proper lookout and to operate the SUV accordingly (see Perry v. Kazolias , 302 AD2d 575 [2d Dept 2003] [driver's excessive rate of speed and failure to keep a proper lookout during a turn he was familiar with severed any connection between the municipality's alleged negligence and the happening of the accident] ). Osorio was familiar with the roadway. He was admittedly speeding in an effort to arrive at his home in White Plains by 8:00 a.m. to be with his family. The Court finds that Osorio's excessive speed and failure to maintain control of the SUV eliminated as a proximate cause any alleged negligence by the State (see Rose v. State of New York , 19 AD3d 680 [2d Dept 2005] [the driver's "familiarity with the ramp, coupled with his excessive speed, eliminate as a proximate cause of his accident any alleged negligence by the State"] ). Thus, the weight of the evidence indicated that the sole proximate cause of the accident was Osorio's inability to maintain control of the SUV and not the absence of a concrete barrier (see Epstein , 124 AD2d at 549 [there is no evidence to support a finding that the guiderail was a proximate cause of the accident given the driver's high speed, any claimed negligence of the State would have had no effect in causing the accident]; Schichler v. State of New York , 110 AD2d 959 [3d Dept 1985], affd 66 NY2d 954 [1985] ; Schwartz v. New York State Thruway Auth. , 95 AD2d 928, 929 [3d Dept 1983], affd 61 NY2d 955 [1984] [driver's negligence in failing to bring his vehicle to a halt by applying his brakes or changing the direction of this vehicle after he entered the shoulder was the proximate cause of the accident and not defendant's failure to have a guiderail installed at that location] ).
Finally, the Court rejects claimants' arguments that the State is not entitled to a qualified immunity in its planning decision not to replace the guiderails with a concrete barrier, despite the State's opportunity to do so during the State's 2003 signage improvement project (see Ramirez v. State of New York , 143 AD3d 880 [2d Dept 2016] ). In the field of traffic design engineering, the State is accorded a qualified immunity from liability arising out of a highway planning decision unless the study was plainly inadequate or there was no reasonable basis for its plan (see Friedman v. State of New York , 67 NY2d 271 [1986] ; Weiss v. Fote , 7 NY2d 579 [1960] ). Notably, it was undisputed that the guiderails met the applicable standards when they were installed by the State in 1962. The Court also finds that there was sufficient evidence to establish that the State adequately considered its design plan for the signage improvement project and its decision not to install a concrete barrier did not lack a reasonable basis and was not plainly inadequate (Ex. 14, pp 581-586; Ex. U, pp 23, 25; Ex. 17, pp 10-11; Ex. PP; see Spanbock v. Trzaska , 287 AD2d 496 [2d Dept 2001] [court rejected argument that traffic study was plainly inadequate or without reasonable basis] ).
In sum, the Court finds that claimants have failed to meet their burden of establishing that the State was under a duty to replace the guiderails with a concrete barrier and that the State's alleged breach of duty was a contributing or proximate cause of the accident (see Clark v. State of New York , 250 AD2d 569 [2d Dept 1998] [claimant failed to prove that State's action or inaction in regard to the roadway was a proximate cause of his accident]; see Martinez v. County of Suffolk , 17 AD3d 643 [2d Dept 2005] [driver's conduct was sole proximate cause of accident; therefore County's purported negligence cannot be deemed a proximate cause] ).
Defendant's motion to dismiss, upon which decision was reserved, is now GRANTED.
All other motions not previously ruled upon are DENIED.
LET JUDGMENTS BE ENTERED DISMISSING CLAIM NOS. 123824 and 124666.