Opinion
# 2016-038-111 Claim No. 120829
08-24-2016
JOHN J. O'SULLIVAN and LINDA I. MANDIC-O'SULLIVAN v. STATE OF NEW YORK
EDWARD J. CARROLL, ESQ. ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Belinda A. Wagner, AAG
Synopsis
Case information
| UID: | 2016-038-111 |
| Claimant(s): | JOHN J. O'SULLIVAN and LINDA I. MANDIC-O'SULLIVAN |
| Claimant short name: | O'SULLIVAN |
| Footnote (claimant name) : | |
| Defendant(s): | |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 120829 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | W. BROOKS DeBOW |
| Claimant's attorney: | EDWARD J. CARROLL, ESQ. |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Belinda A. Wagner, AAG |
| Third-party defendant's attorney: | |
| Signature date: | August 24, 2016 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Caption amended to reflect the State of New York as the only defendant in this claim per stipulation at trial.
Decision
Claimants John J. O'Sullivan and Linda I. Mandic-O'Sullivan seek to recover damages for personal injuries sustained by claimant in a motor vehicle accident on a State highway. The liability phase of the trial of this claim was conducted on July 14, 2014 and June 9 and June 10, 2015. Claimant testified and presented the testimony of New York State Trooper Kevin Gardner, non-party witness John Chipman, and John Serth, a professional engineer (PE). Defendant presented the testimony of Richard Dillmann, the Supervisor of the New York State Department of Transportation (NYSDOT) Region 8 Traffic Control Unit, Keith Savoury, NYSDOT Ulster County Resident Engineer, John Marino, a NYSDOT Region 8 Highway Maintenance Supervisor, Lyman Hale, PE, an expert in guide rail design who is employed in the NYSDOT Specifications and Standards Section, and William Logan, a PE and expert in traffic control devices. The examination before trial (EBT) testimony of claimant and Savoury, and numerous photographic, documentary and other exhibits were received into evidence. After listening to and observing the demeanor of the witnesses as they testified, and upon consideration of their testimony and all of the other evidence received at trial and the applicable law and the parties' post-trial submissions, the Court finds that defendant is not liable for claimant's injuries.
Claimant Linda I. Mandic-O'Sullivan is the wife of claimant John J. O'Sullivan, and her claim is derivative in nature. All references to "claimant" shall mean John J. O'Sullivan unless otherwise noted.
This delay between commencement and completion of the trial of liability was occasioned by an inadvertent omission in claimants' expert disclosure. The trial was adjourned on July 14, 2014 and subsequently rescheduled to allow claimants to submit a supplemental amended expert disclosure and to allow defendant to retain an additional expert and make supplemental expert disclosures.
Certain exhibits were mismarked at trial. The Court now corrects the record so that Keith Savoury's EBT is Claimant's Exhibit 12, John Serth's CV is Claimant's Exhibit 16, and any references to Claimant's Exhibit 18 are stricken from the record.
FACTS
At approximately 6:00 a.m. on October 28, 2011, while proceeding southbound on New York State Route 32 in the Town of Rosendale, just south of Kingston in Ulster County, claimant lost control of his 2001 Chrysler minivan on a slick or icy bridge above the New York State Thruway (hereinafter "Thruway bridge" or "bridge"). The vehicle crossed the northbound lane and struck a guide rail on the shoulder of the northbound side of Route 32 south of the bridge, went up and over the guide rail, and rolled down an embankment. Claimant sustained physical injuries after the vehicle went over the guide rail.
John Marino, a NYSDOT Highway Maintenance Supervisor assigned to the Kingston residency, testified that at approximately 4:00 a.m. on October 28, 2011, he reported to work after having been notified that there was black ice on state roadways in Ulster County. The Kingston residency thereafter received more reports of ice on highways and on bridges on Route 209 in Ulster County. Marino called in a dispatcher and maintenance personnel to drive three salting trucks to cover all of the routes or "beats" in and around Kingston (T3:612). The three trucks departed the Kingston residency at approximately 4:45 a.m. The temperature at the Kingston residency was 29F at 4:00 a.m. that morning, 31F at 5:00 a.m., and 32F at 6:00 a.m., and the weather conditions were recorded as "clear" at those times (see Defendant's Exhibit Y). Fred Schork was assigned to drive a salt truck on the "DR-2" beat, which included the Thruway bridge on Route 32 in both northbound and southbound directions.
All references to the trial transcript are designated by "T1" for the proceedings on July 14, 2014, "T2" for the proceedings on June 9, 2015, and "T3" for the proceedings on June 10, 2015.
Claimants' counsel spent considerable time at trial attempting to demonstrate that the DR-2 beat did not include the Route 32 leg over the bridge, but the Court credits the credible and detailed testimony of Keith Savoury, the NYSDOT Ulster County Resident Engineer, which clearly established that the Route 32 leg was part of the DR-2 beat.
The Snow and Ice Report completed by Schork the morning of the accident states that he started his assignment at 4:45 a.m. and ended at 7:04 a.m., and that he was assigned to do spot treatments (see Defendant's Exhibit Z, at 7), which involved treating ice spots with rock salt where a de-icing agent was required. Schork's Snow and Ice Report states that he encountered freezing rain (see id.), and that he traveled 63 miles, spread salt on 48 miles of road and dropped 3.12 tons of rock salt (see id.). Schork's report did not indicate where he dropped rock salt on the DR-2 beat that morning, and more specifically whether he dropped salt on the Thruway bridge. Schork, who died in 2012, had not given any pre-trial testimony as to the route he followed on the morning of October 28, 2011.
Marino testified that the approximate length of the entire DR-2 beat was 63 miles. Keith Savoury, the NYSDOT Ulster County Resident Engineer responsible for overseeing maintenance operations of state highways in Ulster County, testified that the only way Schork could have traveled 63 miles would have been to cover the Route 32 leg because if he had skipped the Route 32 leg, his mileage would have been less than 63 miles (see T3:562-565). Savoury testified that covering the entire DR-2 beat would have taken approximately 2 hours, and that if Schork had left the Kingston residency at 4:45 a.m., he would have covered the Route 32 northbound and southbound lanes on the Thruway bridge prior to the time of claimant's accident at approximately 6:00 a.m. Marino testified that dropping 3.12 tons of salt was indicative of spot treatment; Savoury testified that the amount was indicative of "pretty heavy" spot treatment (see T3:574). Marino testified that when truck operators perform spot treatment, they use their judgment and experience to spread rock salt where needed, so the entirety of a beat may not be treated, and that it is possible for ice that was melted by salt applied during spot treatment to subsequently re-freeze (see T3:614).
Claimant left his overnight job at Hannaford Supermarket in Kingston at approximately 5:30 a.m. on October 28, 2011 with two passengers, Bobby Childs and Bruce Temple. Claimant dropped Childs off nearby and then fueled his minivan at a gas station. Claimant testified that as he proceeded through Kingston at approximately 6:00 a.m. it was still dark out, that the roads he traveled were not wet, and that he had no difficulty operating his vehicle as he drove southbound on Route 32 and approached the Thruway bridge. Claimant gave testimonial evidence of the weight of various items and their locations in the van at the time of the accident.
Route 32 in the area of the Thruway bridge was a two-lane highway with one northbound and one southbound lane. The bridge was built in 1956 and was 282 feet in length and 42 feet in width and had a posted speed limit of 55 miles per hour (MPH). There was a guide rail along the shoulder of the northbound side of the roadway that continued for approximately 300 feet south past the bridge, over which was an embankment that led down to an access road that allowed access to the New York State Thruway from the northbound lane of Route 32. There were no signs prior to the bridge on the southbound side that warned that the surface of the bridge could freeze over.
Claimant testified that he was traveling at 45 MPH as he approached the Thruway bridge from the north, and that he lost control of his vehicle as soon as he got onto the bridge:
"First, the back end of the van slide - slid out to the left side. So I turned the wheels into where I was sliding from, and then, of course, the vehicle started to slide back to - from - to the right side. By this time, I was probably more than halfway across the bridge, and I tried to turn to the right to correct it, again, and I was still going forward across the bridge"
(T1:157). Claimant testified that he did not apply his brakes or accelerate while his vehicle was sliding and that he eased his foot off the accelerator. Claimant testified that he could not regain control while on the bridge, and that "as soon as I got off of the bridge, I don't know if it's because the vehicle just -- [my vehicle] started sliding to the left. I had no control over [my vehicle]" (T1:159). On cross-examination, claimant clarified that while on the bridge, his vehicle fishtailed first to the left, then to the right, and then back to the left and that when he got off the bridge his vehicle "went all the way left" (T1:232). Once off the bridge, claimant's vehicle crossed the northbound lane and struck a guide rail adjacent to the northbound side of the road, approximately 100 to 150 feet south of the bridge (T3:515; Defendant's Exhibit YY, at 63). Claimant testified on direct and cross-examination that the driver's side of his vehicle hit the guide rail but did not knock it down, that his vehicle went up and over the guide rail, and rolled several times down the embankment past the guide rail. After rolling down the embankment, claimant's vehicle came to rest on the passenger's side of the vehicle on the far side of the Thruway access road with the front end pointed in the northbound direction, having rotated 180 degrees. Claimant testified that his vehicle did not spin around on the Thruway bridge, that he did not recall his vehicle spinning after it left the bridge, and that he had no idea how his vehicle came to rest facing northbound. Photographs of the damage to claimant's vehicle were received into evidence (see e.g. Claimant's Exhibits 3, 4, 5 and 8).
Claimant testified that the roadway surface before the bridge did not look any different than the bridge surface, that he did not notice whether there was any salt or other substance on the bridge roadbed, and that he had been more concerned with controlling his vehicle than looking at the road surface. As he was walking in search of help, claimant testified that when he got to the bridge while walking north on Route 32, he slid and caught himself with his hand. Claimant testified that the bridge surface was slick and had ice on it, and that he did not see any evidence of it having been treated with salt or any other substance.
At approximately the same time as claimant's accident, John Chipman was driving his 1990 Mazda Miata northbound on Route 32 toward the Thruway bridge. Chipman testified that he was traveling at approximately 45 to 50 MPH as he approached the Thruway bridge, that he had no problems operating his vehicle before the bridge, and that although it was not raining, the roads looked wet. When Chipman traveled onto the bridge's surface, the back of his car slid to the right and he lost control of his vehicle. Chipman testified that he turned the steering wheel to the right, but his vehicle slid sideways - perpendicular to the lanes of travel - across the bridge in the southbound lane. Chipman testified that his vehicle did not slow down and it turned right into the northbound lane past the bridge and struck a guide rail and a tree on the right side of the road. Chipman testified that he took his foot off the accelerator when his vehicle lost control and that he had probably applied the brakes. Chipman testified that it was dark, that his headlights were on, that the roadway appeared shiny and that the bridge roadway "looked just as wet as the rest of the roadway" (T1:139). He did not observe any salt on the surface of the bridge. Chipman testified that based on the movement of his car, he "would have to say [that the bridge roadway] was slick" (T1:137-138).
New York State Trooper Kevin Gardner testified that as he approached Chipman's accident on Route 32 from the north, he encountered slick roads, but no ice. Trooper Gardner testified that he took over the investigation of Chipman's accident when he arrived at the scene. Upon receiving a report of claimant's accident, Trooper Gardner left the scene of Chipman's accident and proceeded to the location of claimant's accident. Trooper Gardner subsequently authored a Police Accident Report for the Chipman accident (see Claimant's Exhibit 17).
Trooper Gardner testified that he encountered no problem while driving southbound across the Thruway bridge, and that he parked his vehicle at the top of the access road, which he estimated was 150 to 200 feet south of the bridge. He walked down the access road to claimant's vehicle, which was located approximately 30 to 40 feet south of the bridge on the east side of the access road, lying on the passenger's side and facing northbound. Trooper Gardner testified that the embankment that claimant's vehicle rolled down was covered in high grass, that the path of claimant's vehicle down the embankment onto the access road was visible, and that based upon his experience investigating motor vehicle accidents, the pattern that was left in the high grass by claimant's vehicle indicated that it had rolled down the embankment lengthwise. Trooper Gardner observed that the guide rail struck by claimant's vehicle had sustained minor damage, but was not flattened. Trooper Gardner testified that he did not find anything at the scene of the accident that would have caused the vehicle to slide.
Claimants objected to Trooper Gardner's accident diagram in the Police Accident Report that was received into evidence as Defendant's Exhibit S (T1:34-36). The Court reserved decision on the objection and directed counsel to brief the issue in their post-trial submissions (T3:709-710). Defendant argues that the diagram is admissible because it memorializes Trooper Gardner's understanding of the mechanics of the accident and is not derived upon hearsay as it is based upon statements made by claimant to Trooper Gardner, which are party admissions. Claimants argue in their reply submission that Trooper Gardner did not witness the accident and was not an accident reconstructionist. Defendant's argument that the diagram is based upon admissible party admissions is not supported by authority, and is not persuasive, and defendant has not demonstrated that the diagram was based upon Trooper Gardner's first-hand observations of the accident (see Mooney v Osowiecky, 235 AD2d 603, 604 [3d Dept 1997]). Accordingly, claimants' objection to the admissibility of the diagram is sustained.
Route 32 in the vicinity of the Thruway bridge was last reconstructed in 1956. The guide rail at the time of claimant's accident was a w-beam barrier guide rail that had been installed in 1986. In 2000, Route 32 in the vicinity of the accident received a 1 ½ inch overlay of asphalt. Richard Dillmann, the Supervisor of the NYSDOT Traffic Control Unit for Region 8, which encompasses Ulster County, testified that his unit conducts highway safety studies of locations with a high number of accidents, and that there were no studies done nor any complaints received about Route 32 in the vicinity of the accident. In the three years preceding and including the date of the accident, the only recorded accident on Route 32 in the vicinity of the Thruway bridge other than claimant's and Chipman's was a rear-end collision in May 2010 that was caused by sun glare (see Defendant's Exhibit AA). Claimant presented John Serth, a professional engineer who was formerly employed by NYSDOT, to testify about NYSDOT's snow and ice operations and the installation and maintenance of the guide rail in the vicinity of claimant's accident, and to offer expert opinions thereupon.
At trial, defendant objected to certain portions of Serth's testimony about the installation and maintenance of the guide rail on the ground that claimant's CPLR 3101 (d) supplemental expert disclosure was inadequate. Defendant argued that the supplemental expert disclosure did not state the specific facts upon which his opinion was based (T2:319-326) and that it did not disclose that the expert would be considering the vehicle's center of mass in rendering an opinion as to the height of the guide rail (T2:336-337). CPLR 3101(d) does not require an expert disclosure to set forth specific facts and opinions, but only the substance of the facts and opinions upon which the expert is expected to testify (see Mary Imogene Bassett Hosp. v Cannon Design, Inc., 97 AD3d 1030 [3d Dept 2012]). Claimant's expert disclosure provided sufficient notice that Serth would testify that the height of the guide rail was a contributing factor in the accident. Further, claimant's supplemental amended expert disclosure was served nearly ten months before the resumption of the trial, and defendant made no objection to the disclosure until trial, and has neither argued nor demonstrated that it was surprised or prejudiced by the allegedly inadequate disclosure (see Gross v Sandow, 5 AD3d 901, 902 [3d Dept 2004]; cf. Qian v Dugan, 256 AD2d 782 [3d Dept 1998]). Defendant's objections to Serth's testimony are overruled.
It was Serth's opinion that NYSDOT maintenance personnel deviated from accepted maintenance standards because they did not salt the Thruway bridge prior to claimant's accident. Serth further opined that the guide rail that was struck by claimant's vehicle did not conform to accepted engineering standards, and that the improper height of the guide rail was a proximate cause of the rollover that caused claimant's injuries.
Serth testified that most roads do not freeze in October because the ground is generally above freezing, but the temperatures of bridge surfaces will drop faster and may freeze before adjacent roadways because they are suspended in air. Serth testified that once a bridge surface freezes, roadway friction is decreased, which can be addressed either by melting the ice or increasing the friction. Serth testified that ice can be melted by the application of salt, and that salting operations should commence as soon as the precipitation starts if it is expected in autumn that the temperature will drop below freezing.
The guide rail was a corrugated w-beam barrier that was installed horizontally on vertical weak posts that were spaced approximately 12 feet apart (hereinafter "w-beam guide rail"). Serth testified that guide rails are designed to re-direct errant vehicles back onto the roadway, and that the w-beam guide rail is designed so that a vehicle that weighs 4,000 pounds that hits it at 60 MPH at an angle of 25 degrees on dry pavement will deflect 8 feet. Serth testified that the post spacing on the w-beam guide rail changes nearer to the bridge because an 8 foot deflection was not desirable.
Based upon claimant's testimony about the actions of his vehicle during the accident, it was Serth's opinion that the rear wheels were not tracking - or following - the front wheels while on the bridge, but that the rear wheels were tracking the front wheels when the vehicle struck the guide rail because the co-efficient of friction changed from the bridge's icy surface to the roadway surface. When asked on cross-examination whether he understood that the guide rail is not designed for non-tracking vehicles, he replied "yes and no" (T2:399). Serth testified that the design criteria for this guide rail - 25 angle at 60 MPH on dry pavement - is a worst case scenario, and that the extreme angle and speed anticipated by the design criteria were not met because claimant's vehicle was decelerating as it slid on wet pavement and struck the guide rail at an angle that was not as acute as the 25 design angle.
Serth testified that guide rails have minimum design heights measured from the top of the rail to the pavement. Serth testified that vehicles will go under or over a guide rail if it is designed too high or too low, and that the minimum height requirements are designed to keep the center of mass of most vehicles below the guide rail so that vehicles do not flip over the guide rail when there is a side impact. Serth testified that vehicles that do roll over a guide rail tend to roll over "side to side," that he had not seen a vehicle that had rolled "end to end," and that vehicles do not usually flip end to end "unless you've done something really spectacular" (T2:395-396). Serth testified that the minimum height requirements for a w-beam guide rail on a road that had been resurfaced - much like the resurfacing that had been done on Route 32 in 2000 - was between 27 to 29 inches, depending upon when the resurfacing was done (T2:307-309; 337). On cross-examination, Serth testified that 1984 NYSDOT specifications provided that the w-beam guide rail was supposed to be installed at a height of 30 inches, but that a height between 27 inches to 33 inches was allowable (T2:384-385; see Defendant's Exhibit OO).
Serth testified that he went to the accident scene in July 2014 and measured the height of the guide rail on the northbound shoulder from the bridge to its southern terminus, and that he took photographs (see Claimant's Exhibit 14). Serth testified that the w-beam guide rail "that [he] saw out there was well below the minimum height, so although the minimum height has changed over the years between 28, 29 inches, we're looking at 23, 24 inches. So it wasn't even close to what would have been there after proper resurfacing" (T2:308). A diagram of Serth's measurements was received in evidence (see Claimant's Exhibit 13), and Serth testified that the height of the guide rail was between 23 and 25 inches at three different points to the south of the Thruway bridge, all of which were well below the minimum height for the guide rail (T2:362-363). Serth opined that defendant deviated from good engineering practice in the maintenance of the guide rails because they should have been raised after the resurfacing of the road. Serth conceded that NYSDOT was not required to make safety improvements on an asphalt overlay project, but he testified that in the course of such a project, NYSDOT cannot make a safety feature worse, such as lowering the height of a guide rail by raising the height of the pavement with an asphalt overlay. Serth testified that he calculated the center of mass for claimant's 2001 Chrysler Caravan and determined it to be at 26 inches, which was below the minimum height requirements for the w-beam guide rail, but was above the actual height of the guide rail that claimant struck. It was Serth's opinion that the guide rail was too short and that claimant's vehicle would not have gone over it if the guide rail had been at its proper height.
Defendant presented expert testimony on guide rail design from Lyman Hale, a PE who is employed in the NYSDOT Specifications and Standards Section and whose responsibilities include Chapter 10 of the Highway Design Manual, which includes roadside design, guide rails and appurtenances. Hale testified that the purpose of a guide rail is to keep the majority of errant vehicles from traveling too far off the road and encountering a potentially dangerous feature. Hale testified that guide rails act in tension to capture vehicles and prevent them from moving further off the road, and that w-beam guide rail is designed to engage with some portion of the vehicle, and redirect it to prevent it from leaving the roadway surface. Hale testified that a weak post is preferred to a heavy post with w-beam guide rails because soft posts have a softer reaction than heavy posts when the guide rail is struck by a vehicle. Hale testified that guide rail height requirements have increased over time, and that under the NYSDOT standards that were in effect in 1984, two years before the installation of the guide rail at the accident site, a w-beam guide rail installed on a weak post was required to have a nominal height of 30 inches, but the guide rail height could be anywhere between 27 and 33 inches high (see Defendant's Exhibit OO). Hale testified that a low guide rail "will probably capture more vehicles with a low front end and fewer vehicles with a high front end" and "[i]f it's high, probably the opposite" (T3:650-651).
Hale testified that Report 350 of the National Cooperative Highway Research Program (NCHRP) was a multi-state effort of state departments of transportation that contains recommended procedures for the safety performance evaluation of highway features. According to Report 350, guide rail is designed to pass a specific set of crash tests utilizing two vehicles, a smaller 2,000 pound vehicle and a 4,400 pound pickup truck, and the testing procedures specify the approximate height of the vehicles' centers of gravity. Hale explained why he disagreed with Serth's opinion that claimant's vehicle would not have gone over the guide rail if its center of gravity was lower than the height of the guide rail. First, Hale testified that when a vehicle is sliding sideways, as was claimant's vehicle when it headed toward the guide rail, the side that is away from the slide tends to elevate, lowering the side that is closer to the slide, and thus, the side of claimant's vehicle closest to the guide rail would have been leaning toward the guide rail. Hale testified that it is possible for vehicles to overturn without any interaction with a guide rail, and it would be difficult to say what occurred during claimant's accident because the degree to which claimant's vehicle was leaning into the slide is unknown. Second, Hale testified the w-beam guide rail is a flexible guide rail with as much as an 8-foot deflection, thus, the guide rail could have been well-deflected before it could have exerted a strong force on the vehicle. Assuming that the vehicle was leaning, Hale testified that it would have made contact high on the rail and probably pushed the rail down and lower as it moved onto it. Finally, Hale testified that there has not been any testing to determine whether a vehicle will or will not tip over a guide rail if its center of gravity is lower than a guide rail.
Hale testified that all of the guide rail crash testing is based upon situations where the vehicles' rear wheels were tracking the front wheels, and that NCHRP Report 350 states that guide rail cannot be designed to prevent roll over. Hale testified that a vehicle that is not tracking will usually be in some kind of lean that makes the vehicle less likely to engage the guide rail, which produces a greater chance of roll over. Claimant's testimony that his vehicle abruptly moved to the left upon leaving the bridge roadway indicates that his rear wheels were not tracking his front wheels (see T3:659), and so it would not be possible to determine whether a guide rail at a height of 27 inches would have prevented claimant's vehicle from rolling over the guide rail. Hale explained that because the vehicle's speed, attitude, amount of lean and rate of yaw (or spin) are unknown, and because guide rail has not been tested with regard to prevention of roll overs, there are too many unknowns to conclude that the guide rail failed because it was too low, because "[w]e can't say how the vehicle got over the rail, and we can't say what the vehicle was doing precisely when it contacted the rail" (T3:675). In sum, Hale testified that guide rail is designed to pass a specific set of crash criteria including prescribed angles, vehicle masses and speed, and that if the speed and angle of a vehicle is unknown as it was in claimant's accident, it would be speculative to state that a higher guide rail would have prevented a rollover. William Logan, a professional engineer and former NYSDOT employee who worked as a Region I Traffic and Safety Engineer, testified for defendant as an expert on traffic control devices. Logan testified that the federal Manual on Uniform Traffic Control Devices (MUTCD) and the New York State supplement to the MUTCD describe the traffic control devices that may be used, and prescribe those situations where engineering judgment should be used to determine the use of traffic control devices. According to the MUTCD, warning signs call attention to unexpected or latent conditions to alert road users to the possibility that lower speed or other safety related action may be called for (see Defendant's Exhibit UU, at p.103). The MUTCD provides that "[t]he use of warning signs shall be based on an engineering study or engineering judgment," and that:
"The use of warning signs should be kept to a minimum as the unnecessary use of warning signs tends to breed disrespect for all signs. In situations where the condition or activity is seasonal or temporary, the warning sign should be removed or covered when the condition or activity does not exist."
(id. [emphasis in original]). The MUTCD contains a sign warning that "BRIDGE ICES BEFORE ROAD" that "may be used in advance of bridges to advise bridge users of winter weather conditions" and that "may be removed or covered during seasons of the year when its message is not relevant" (see id., at p.122 [emphasis added]). There is also a sign in the MUTCD that warns of "ICE" (id., at p.121), which the New York supplement states "should be used only where it has been determined that recurrent pavement icing in an isolated section of otherwise clear roadway constitutes an unusual hazard" (Defendant's Exhibit VV, at Section 2C.32[01B]). Logan testified that considering the lack of complaints and the lack of ice-related accident history for the subject roadway, it was his opinion that in the exercise of engineering judgment a sign warning of ice on the Thruway bridge or that the bridge would freeze before the roadway was not warranted.
DISCUSSION
Claimants assert two distinct theories of liability. First, they contend that defendant failed to salt the bridge surface, thereby breaching a duty to properly maintain the bridge. They further seek liability upon the theory that defendant negligently installed or maintained the guide rail.
The claim and claimants' bill of particulars allege that there was an absence of grooves in the pavement, but no evidence was adduced as to the purpose of grooves or any causative effect of the lack of grooves, and no argument based upon the absence of grooves has been made by claimants.
Similarly, although claimants offered evidence at trial relating to signs warning of icy conditions on bridges, they propound no argument that a duty to post such a warning existed. Liability for an omission to post a warning sign requires a showing that the State had actual or constructive notice of a recurrent hazardous condition at the location of claimant's accident (see Freund v State of New York, 137 AD2d 908, 909 [3d Dept 1988], lv denied 72 NY2d 802 [1988]), and there was no evidence at trial that there was a recurrent icy condition on the Thruway bridge or that defendant had notice thereof. Accordingly, claimants have not demonstrated that defendant breached any duty to post a warning sign.
The State owes to the public a nondelegable duty to design, construct and maintain its roadways in a reasonably safe condition (see Friedman v State of New York, 67 NY2d 271, 283 [1986]; Freund v State of New York, 137 AD2d 908, 908 [3d Dept 1988], lv denied 72 NY2d 802 [1988]), but the State is not an insurer for motorists who travel on State highways (see Tomassi v Town of Union, 46 NY2d 91, 97 [1978]; Rooney v State of New York, 111 AD2d 159, 160 [2nd Dept 1985]). When, as here, an accident is alleged to have been caused by an icy condition on a State roadway, claimants must demonstrate that "the State created the condition or had notice of it for a sufficiently long period of time to have corrected it, and if this is established, whether the State's maintenance practice was reasonable in responding to the condition which caused [the accident]" (Johnson v State of New York, 265 AD2d 652, 652 [3d Dept 1999] [emphasis added]; see Harjes v State of New York, 71 AD3d 1278, 1279 [3d Dept 2010]; Hart v State of New York, 43 AD3d 524, 525 [3d Dept 2007]).
With regard to the threshold element of notice, there was no proof at trial that defendant had actual notice of an icy or slick condition on the Thruway bridge on the morning of claimant's accident, and thus, claimants must establish that defendant had constructive notice by demonstrating that the icy condition existed "for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it" (Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]). Such notice "is not established through defendant's general awareness that icy conditions may exist" (Hart v State of New York, 43 AD3d at 525; see Richer v State of New York, 31 AD3d 943, 944 [3d Dept 2006]; Harjes v State of New York, 71 AD3d at 1279). Rather, claimant must demonstrate that defendant had notice of the icy condition at the site of claimant's accident (see Harjes v State of New York, 71 AD3d at 1279; Hart v State of New York, 43 AD3d at 525; Slaughter v State of New York, 238 AD2d 770, 771-772 [3d Dept 1997]).
The preponderance of the credible evidence does not support a finding that the State had constructive notice of an icy or slick condition on the Route 32 Thruway bridge on the morning of October 28, 2011. The evidence at trial clearly establishes that defendant knew that some of the roadways and other bridges in Region 8 were experiencing icing conditions during the early morning hours of October 28, 2011, but that does not suffice to establish notice of a slippery condition on the Thruway bridge (see Harjes v State of New York; Hart v State of New York). While there can be little doubt that the bridge surface was slick at the time of claimant's accident, no evidence was adduced that other motorists had experienced this dangerous condition that morning prior to claimant's and Chipman's accidents, nor was there any evidence about the character, quality, or appearance of the icy or slick condition from which an inference may be drawn that the condition existed for a sufficient period of time for defendant's agents to have discovered and remedied it further. Thus, claimants did not establish by a preponderance of the credible evidence that defendant had constructive notice of the slippery conditions on the Thruway bridge on the morning of claimant's accident.
Even if the evidence sufficiently established defendant's constructive notice of the icy condition on the Thruway bridge prior to claimant's accident, claimants did not establish by a preponderance of the credible evidence at trial that defendant was negligent in its maintenance of the bridge. Athough claimants' counsel argued that the Thruway bridge was not included in the DR-2 beat driven by Schork that morning, the argument is not supported by a preponderance of the evidence at trial. The Snow and Ice Report and the map depicting Region 8 (see Defendant's Exhibit Z; Claimants' Exhibit 2) that were received into evidence along with the testimony of Marino and Savoury demonstrate that the DR-2 beat does include the Thruway bridge, that the DR-2 beat is 63 miles in length and that Schork drove 63 miles that morning and that if he had not driven the leg of the beat that includes the bridge he would not have traveled that distance, that he was spot treating slick conditions as he saw fit, that he dropped a substantial amount of salt, and that based upon the time of Schork's departure from the Kingston residency, he would have traversed the Thruway bridge in both north and southbound directions prior to the time of claimant's accident. To the extent that Trooper Gardner testified that he did not recall whether he had seen a snowplow or salt truck at the bridge that morning, his testimony was addressed to the period of time after claimant's accident. Considering all of this evidence along with an absence of evidence that Schork did not traverse the bridge, claimants have not demonstrated by a preponderance of the evidence at trial that defendant failed to treat the Thruway bridge prior to claimant's accident.
The Court is mindful that Schork's death prior to an EBT renders it difficult for claimants to marshal proof on this point, but that does not lessen their burden to prove defendant's negligence at trial. --------
Nor is there persuasive evidence that the bridge was not treated with salt. Although claimant's attention was not specifically focused on the road surface as his accident was unfolding, he did not notice whether there was any salt or other substance on the bridge roadbed. His testimony that he did not see any salt on the bridge when he was on foot and slipped on the icy surface after the accident is not compelling, inasmuch as it was still dark and his purpose at that time was to find assistance in the wake of the rollover accident. There was evidence from which it is inferrable that Schork drove the bridge, that he was spot treating surfaces as needed, and that the roadway could have been salted and thereafter refrozen. Both a homeowner who came to claimant's assistance and Trooper Gardner, although proceeding more slowly than both claimant and Chipman, were able to drive across the bridge without sliding. In short, the Court is not persuaded to a preponderance of the evidence that defendant did not treat the roadway surface with salt prior to claimant's accident.
Claimants' assertion that defendant should be held liable for negligent installation and maintenance of the guide rail that claimant's vehicle struck is based upon their theory that the guide rail was too low to prevent claimant's vehicle from going over it. One of the several elements that claimants must establish for liability to attach under this theory is that the alleged improper installation or flawed maintenance of the guide rail was a proximate cause of claimant's injuries. To prove proximate cause, claimants "must generally show that the defendant's negligence was a substantial cause of the events which produced the injury" (Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 [1980]).
"[Claimants] need not positively exclude every other possible cause of the accident. Rather, the proof must render those other causes sufficiently 'remote' or 'technical' to enable the [factfinder] to reach its verdict based not upon speculation, but upon logical inferences to be drawn from the evidence. A [claimant] need only prove that it was 'more likely' or 'more reasonable' that the alleged injury was caused by the defendant's negligence than by some other agency"
(Gayle v City of New York, 92 NY2d 936, 937 [1998] [citations omitted]).
The basic premise of Serth's opinion is that if the guide rail had met minimum height requirements, it would have been higher than the center of mass of claimant's vehicle and it would have prevented the vehicle from going down the embankment. Serth's opinion was based upon facts in the record, i.e., the height of the guide rail, his calculation of the center of mass of claimant's vehicle, the approximate angle and speed at which claimant's vehicle struck the guide rail, and guide rail design criteria. Defendant characterizes Serth's opinion as speculative because little is known about many factors involved in claimant's accident and there is no testing done on guide rail for non-tracking vehicles, and thus argues that it is not possible to determine whether the height of the guide rail caused the roll over. Serth's opinion was supported by facts in evidence (compare Diaz v Anasco, 38 AD3d 295 [1st Dept 2007] [expert's opinion absent explanation is "mere speculation"]), and defendant's assertion that claimants' proof of proximate cause is insufficient because Serth's opinion was mere speculation is unpersuasive.
Nevertheless, the Court does not find that the height of the guide rail was a proximate cause of claimant's injuries, for the reasons that follow. In viewing the experts at trial and assessing their credibility, the Court gives substantially greater weight to the testimony of defendant's expert Hale than to that of claimants' expert Serth. While Serth was certainly a knowledgeable witness, his testimony and opinions appeared to be skewed toward a favorable result to claimants. In comparison, Hale's testimony was clearly based upon his expertise and attention to detail, and he was a deliberate witness who was careful to offer opinions only within his area of expertise and based only on the facts in evidence. Accordingly, the Court gives Hale's testimony significantly greater weight than is accorded to Serth's testimony.
Hale testified that based upon claimant's testimony, his vehicle was sliding as it left the bridge surface, and that the rear wheels on claimant's vehicle were likely not tracking the front wheels. Hale gave expert testimony that vehicles that are in a slide tend to lean into the slide, and that non-tracking vehicles are more likely to rollover than tracking vehicles. Hale acknowledged that because the degree of lean of claimant's vehicle was unknown, he could not determine whether claimant's vehicle was in the process of rolling over as it struck the guide rail, nor could he offer an opinion as to how claimant's vehicle rolled over the guide rail. Hale's testimony demonstrates that determining the cause of the rollover necessarily requires consideration of whether claimant's vehicle was leaning before it struck the guide rail, but Serth did not appear to consider this factor in reaching his opinion on causation. Further, as Hale testified, any evaluation of the structure or efficiency of the guide rail should have included consideration of the rate of spin of the vehicle, which Serth did not appear to consider. Hale also testified that guide rail is tested with tracking vehicles, and inasmuch as claimant's vehicle was non-tracking, it would not be possible to determine whether the height of the guide rail was a cause of claimant's roll over. Serth's testimony that claimant's vehicle was tracking is at odds with claimant's testimony that the vehicle was sliding out of control to the left across the northbound lane toward the guide rail. Serth's testimony demonstrated that he did not consider certain relevant factors, and he did not explain why they were not necessary considerations, nor did he acknowledge that the lack of knowledge of the specific circumstances of claimant's accident interfered with his ability to form his opinions about the cause of the rollover. Thus, after viewing the testimony of the experts and their demeanor while testifying and in consideration of all of the evidence received at trial, the Court credits Hale's testimony that the available facts do not allow a determination of whether the height of the guide rail caused the rollover (see Shaw v Binghamton Lodge No. 852, B.P.O. Elks Home, 155 AD2d 805, 806 [3d Dept 1989]). Accordingly, the preponderance of the credible evidence does not establish that any error in the installation or maintenance of the guide rail proximately caused claimant's vehicle to rise over the guide rail and roll down the embankment.
In sum, because claimants did not demonstrate by a preponderance of the credible evidence that defendant had constructive notice of the icy condition on the Thruway bridge prior to claimant's accident on the morning of October 28, 2011, or that it breached a duty to post a warning sign, or failed to treat the surface of the Thruway bridge, and because claimants did not establish that the height of the guide rail was a proximate cause of claimant's injuries, defendant is not liable to claimants for injuries sustained by claimants as a result of this accident.
CONCLUSION
Defendant is not liable to claimants for their injuries. The Chief Clerk is directed to enter judgment in favor of defendant, dismissing the claim. Any motions not previously ruled upon are hereby DENIED.
Let judgment be entered accordingly.
August 24, 2016
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims