Opinion
# 2019-044-002 Claim No. 128906
03-19-2019
TANYSHIA PLATTS v. THE STATE OF NEW YORK
McMAHON KUBLICK & SMITH, P.C. BY: W. Robert Taylor, Esq., of counsel HON. LETITIA JAMES, ATTORNEY GENERAL BY: Douglas H. Squire, Assistant Attorney General
Synopsis
After trial, Court dismissed claim for injuries due to automobile accident allegedly occurring because of negligent guide rail design/construction.
Case information
| UID: | 2019-044-002 |
| Claimant(s): | TANYSHIA PLATTS |
| Claimant short name: | PLATTS |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 128906 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | CATHERINE C. SCHAEWE |
| Claimant's attorney: | McMAHON KUBLICK & SMITH, P.C. BY: W. Robert Taylor, Esq., of counsel |
| Defendant's attorney: | HON. LETITIA JAMES, ATTORNEY GENERAL BY: Douglas H. Squire, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | March 19, 2019 |
| City: | Binghamton |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant seeks damages for personal injuries incurred in a motor vehicle accident which took place on January 18, 2015 on State Route 17 (Route 17) in the Town of Rockland, Sullivan County. Route 17 is a highway owned by defendant State of New York (defendant). Claimant alleges that defendant was negligent by utilizing a cable guide rail in that location (as opposed to a different type of guide rail) in violation of State Department of Transportation (DOT) guidelines, because the slope of the adjacent embankment was greater than 50%. A bifurcated trial on the liability portion of the claim was held on March 12, 2019, in the Binghamton District of the Court of Claims. This decision addresses the issue of liability only.
In the claim, claimant further alleges negligent maintenance of the highway, as well as improper signage and failure to close the road in severe weather conditions. However, no evidence regarding those allegations was introduced at trial, other than claimant's testimony in passing that the vehicle she was riding in slid on ice.
At trial, claimant testified that she, her brother, his girlfriend and her stepfather were traveling east on Route 17 at the time of the accident, with her stepfather driving. She was sitting in the back seat behind the driver. She said that immediately prior to the accident she saw someone in the road and the driver of her vehicle swerved to avoid that person. She also saw another vehicle parked on the side of the road. She said the car she was in slid on ice, and she remembered nothing further until after the accident. Pictures and testimony introduced at trial indicate that claimant's vehicle hit a vehicle parked by the side of the road, went over an embankment on the other side of a cable guide rail, and collided with a tree.
James Napoleon, P.E., testified as claimant's expert. He said he went to the scene of the accident and took measurements of the slope at the side of the road beyond the guide rail. He stated that his measurements indicated that the slope was 58% at that location. He noted that one of defendant's experts, Drew Newby, stated during his deposition that cable guide rails should not be used at locations where the slope is steeper than 50%. Napoleon opined that because there were trees at the bottom of the slope, a box beam guide rail should have been installed at that location. He stated that the cable guide rail was incapable of restraining the vehicle from passing through it, going down the slope and hitting a tree.
On cross-examination, Napoleon acknowledged he is not an accident reconstructionist and could not estimate vehicle speed or angles of impact. When asked whether claimant's vehicle went under, over or through the cables of the guide rail, he stated that he did not know because he "was not there," but he said it was his understanding that the vehicle collided with another vehicle prior to leaving the roadway. Napoleon said he could not testify regarding the interaction between claimant's vehicle and the guide rail, but opined that if the guide rail had been a box guide rail instead of a cable guide rail, the vehicle would not have been able to go down the embankment and hit a tree. He asserted that he knew the "defective guide rail" was the proximate cause of claimant's injuries because the vehicle left the roadway and went down the embankment. He did not believe the vehicle flipped over. Napoleon said he did not measure the distance from the roadway to the tree claimant's vehicle eventually collided with, but agreed that it could have been 30 feet.
All quotes herein are taken from the Court's notes of the proceeding, unless otherwise indicated.
Claimant rested her testimony at the close of Napoleon's testimony. Defendant moved to dismiss on the basis that claimant had failed to set forth a prima facie case, arguing that claimant had not shown that any alleged negligence on the part of defendant was the proximate cause of claimant's injuries. Counsel for defendant noted that there was no proof regarding why the vehicle left the roadway, and contended that it was equally as likely that the reason the car went down the embankment was the collision with the parked vehicle.
Robert Bennett, formerly a State Police accident reconstructionist and currently self-employed in the field of accident reconstruction, testified on defendant's behalf. Bennett established his expert credentials by setting forth in great detail the courses and continuing education he has taken in the subject, as well as his extensive experience reconstructing accidents for the State Police. He reconstructed this accident based upon reports, measurements and photographs taken by the State Police in the investigation of the accident.
Bennett stated that claimant's vehicle, a Nissan Altima, was traveling east on Route 17, and rounded a left-hand curve approximately 1/4 mile before the actual accident scene. He said the driver lost control of the vehicle, which rotated clockwise and slid sideways down the road, eventually colliding with a Dodge Avenger parked at the side of the road. He said the evidence showed that the area on the Nissan between the front axle and the driver's side seat pillar collided with the rear of the Dodge. He said the Dodge was pushed forward, impacting the cables of the guide rail and deflecting into the roadway. He said the Nissan continued to rotate clockwise, struck a guide rail pole with the driver's side rear bumper area, then traveled down the slope and the passenger's side collided with a tree approximately 30 feet from the side of the road. He noted that one photograph clearly showed that the Dodge made substantial contact with the cables of the guide rail, and that another photograph showed that an impact had occurred between the front passenger side of the Dodge and a guide rail post.
Defendant's Exhibit C-86.
Defendant's Exhibit C-10.
Bennett testified that in his opinion (which he said was based upon conservative assumptions) the Nissan was traveling at approximately 40 miles per hour at the time of its impact with the Dodge, and approximately 10 miles per hour when it hit the tree.
On cross-examination, Bennett explained in detail the calculations he used to estimate the speed of claimant's vehicle. He said the vehicles weighed approximately the same amount (3,100 pounds for the Nissan, 3,800 pounds for the Dodge), and that the energy transferred from the Nissan to the Dodge in the impact would have resulted in both vehicles traveling at approximately the same speed when each of them struck the guide rail. He estimated that speed to be approximately 15 to 18 miles per hour. He said that whether any type of guide rail will stop a vehicle depends on the dynamics of the particular collision. He noted that in this instance the Dodge struck the guide rail with approximately the same speed and weight as claimant's vehicle and was deflected into the roadway, whereas claimant's vehicle struck the guide rail in approximately the same location and went over the embankment. He opined that if a guide rail of any type is damaged due to a collision, it is unknown what will happen when a second vehicle strikes that guide rail in the same location.
On redirect, Bennett stated that it was his opinion that claimant's vehicle went over the wires of the guide rail. He noted that one of the accident scene photographs shows a guide rail post laying on the ground, and that debris from both cars (one red, one blue) is littered around the post. Although claimant's vehicle showed signs of impact with a post, he said there was no indication that it "tangled" with the wires, in contrast to the clear indication that the Dodge made contact with the wires.
Claimant's Exhibit 8.
Defendant also called Drew Newby, P.E., to testify. Newby is a DOT employee who has worked in the design department since 2006. He stated that the purpose of a guide rail is to shield vehicles from leaving the roadway and colliding with fixed objects in the clear zone. He also noted that a cable guide rail is the most flexible type of guide rail, with a standard deflection distance of 11 feet. Accordingly, it can be used in any instance where a fixed hazard is located further than 11 feet from the road. The disadvantage of cable guide rails, however, is that when they are hit they require repair, so they cannot be used on high-volume roadways.
Newby said that DOT's records indicated that this particular cable guide rail was replaced in either 2008 or 2009. He also stated that the final design report for the project indicates that DOT reviewed all the "runs of guide rail" for that particular project. He testified that in this particular location there had previously been a cable guide rail, and because the location still met all standards for a cable guide rail it was "replaced in kind." He also noted that part of that decision making process would have been a review of the slope angle, volume of vehicles on the roadway, and clearance area beyond the guide rail.
Newby stated that he personally measured the degree of the slope using a "smart level." His measurement of the slope indicated an angle of 1 over 2 ½, or a little less than 50%. He said this degree of slope is acceptable for cable guide rail systems. He noted that the volume of traffic on the roadway was approximately 8,200 vehicles per day total, or a little over 2,000 per lane, which is also acceptable for cable guide rail systems. He also said that there was no fixed hazard in the deflection zone for this run of guide rail. Based upon the foregoing, he opined that a cable guide rail system was appropriate for that location. He further testified that this determination was reflected in the 2006 final design report.
Claimant's Exhibit 4.
On cross-examination, Newby explained that if a slope is steeper than 50%, a cable guide rail system can still be used if the posts are installed closer together to decrease the deflection distance to 8 feet or less. He did not know whether the post spacing had been reduced in that area. He said that the reason a standard cable guide rail system (without reduction of the spacing between posts) should not be used where the slope is over 50% is because a vehicle can pass under the cables traveling down the slope. Newby acknowledged that he was not a surveyor, and said he used a four-foot smart level to take his measurements.
Defendant rested its case at the close of Newby's testimony. Defendant renewed its motion to dismiss on the basis that claimant had failed to establish a prima facie case, in that any alleged negligence by defendant was not shown to be the proximate cause of claimant's injuries. Counsel for defendant also asserted the defense of qualified immunity and noted that there had been no testimony regarding the road surface or road maintenance. The Court reserved determination on the motion and reserved decision.
It is well-settled that the State owes to the traveling public a nondelegable duty to design, construct, and maintain its roadways in a reasonably safe condition under the circumstances (Friedman v State of New York, 67 NY2d 271, 283 [1986]). This duty includes an obligation to provide adequate and proper traffic barriers, such as guide rails (McDonald v State of New York, 307 AD2d 687 [3d Dept 2003]; Lattanzi v State of New York, 74 AD2d 378 [3d Dept 1980], affd 53 NY2d 1045 [1981]; see generally Bottalico v State of New York, 59 NY2d 302 [1983]). Nevertheless, the State is not an insurer, and the mere happening of an accident does not permit an inference of negligence (see Tomassi v Town of Union, 46 NY2d 91, 97 [1978]; Boulos v State of New York, 82 AD2d 930, 931 [3d Dept 1981], affd 56 NY2d 714 [1982]). Any roadway can be made safer, but the State's duty has generally been met when users of the highway exercising due care can travel over the roadway safely (Tomassi, 46 NY2d at 97; Boulos, 82 AD2d at 931).
In order to recover, a claimant has the burden to show that defendant was negligent and that its negligence was a proximate cause of the accident (Bernstein v City of New York, 69 NY2d 1020, 1021-1022 [1987]; Hamilton v State of New York, 277 AD2d 982 [4th Dept 2000], lv denied 96 NY2d 704 [2001]; Marchetto v State of New York, 179 AD2d 947 [3d Dept 1992], lv denied 80 NY2d 751 [1992]; Demesmin v Town of Islip, 147 AD2d 519 [2d Dept 1989]). To establish defendant's negligence, the claimant must show that defendant either created a dangerous condition, or had actual or constructive notice of it and failed to take reasonable measures to correct it (Brooks v New York State Thruway Auth., 73 AD2d 767 [3d Dept 1979], affd 51 NY2d 892 [1980]; Rinaldi v State of New York, 49 AD2d 361 [3d Dept 1975]). However, the State has qualified immunity from liability with respect to discretionary decisions made in the course of planning and designing a highway, such that liability cannot be imposed unless those decisions were based on a study that was plainly inadequate and/or the plan or design itself lacked a reasonable basis (Weiss v Fote, 7 NY2d 579, 589 [1960]; Friedman, 67 NY2d at 283-284). This prevents the finder of fact from "second-guessing the planning decisions of governmental bodies regarding such operations as traffic control and regulation" (Deringer v Rossi, 260 AD2d 305, 306 [1st Dept 1999]). Therefore, as a general rule, where experts have differing opinions about whether a planning decision was proper, that difference of opinion is sufficient to establish that the decision was reasonable (Schwartz v New York State Thruway Auth., 95 AD2d 928, 929 [3d Dept 1983], affd 61 NY2d 955 [1984]).
The Court finds that claimant has not established that defendant was negligent. Claimant's expert Napoleon testified that the slope of the embankment at the scene of the accident was greater than 50%, and counsel argued that use of a cable guide rail system at that location with that degree of slope conclusively established defendant's negligence. However, claimant's expert's testimony that the slope was greater than 50% was disputed by defendant's expert Newby. More importantly, Newby's uncontroverted testimony was that a cable guide rail system could be used in situations where the grade was greater than 50% if the posts were placed closer together. No testimony was adduced regarding the spacing of the posts at that location. Accordingly, it cannot be said that defendant's use of a cable guide rail system in that location was inappropriate or contrary to any DOT guideline.
Notably, neither party provided any source other than Newby's testimony to establish DOT's guidelines regarding this issue.
Apparently they took their measurements on the same day, five days prior to trial. Newby indicated that he took his measurements at the same location where Napoleon had excavated the snow cover down to the ground to take his own measurements. --------
Moreover, claimant did not establish that even if defendant's use of the cable guide rail system at that location had been negligent, that such negligence was the proximate cause of claimant's injuries. Claimant's expert stated unequivocally that he did not know how claimant's vehicle interacted with the cable guide rail system. Defendant's accident reconstruction expert testified that the other vehicle struck the guide rail first and was appropriately deflected, and that the first collision may have damaged the system to the extent that claimant's vehicle simply passed over the cables before descending the hill.
In any event, it is also clear that defendant is entitled to qualified immunity under Weiss v Fote for its discretionary determination to use a cable guide rail system at that location. Newby testified that the degree of slope, traffic volume and fixed hazards were all examined prior to reconstruction of the area, and it was determined that a cable guide rail system would be appropriate and in accordance with standards at this location. There was no showing that this determination was plainly inadequate, or was made without adequate study or lacked a reasonable basis. Further, there was no evidence that there was notice to defendant of any dangerous condition existing at this location.
In conclusion, while the occurrence of the accident was unfortunate, the evidence does not establish a basis for the liability of defendant for any of claimant's injuries. Defendant's motion to dismiss the claim is hereby granted and Claim No. 128906 is dismissed in its entirety.
Let judgment be entered accordingly.
March 19, 2019
Binghamton, New York
CATHERINE C. SCHAEWE
Judge of the Court of Claims