Opinion
# 2012-015-535 Claim No. 114190
03-16-2012
POLITI v. THE STATE OF NEW YORK
Synopsis
Claim for injuries sustained in a motorcycle accident on a State highway was dismissed following trial. Claimant failed to establish by a preponderance of the credible evidence that his accident was caused by the negligent design, construction or maintenance of the highway. Case information
UID: 2012-015-535 Claimant(s): CASEY J. POLITI Claimant short name: POLITI Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 114190 Motion number(s): Cross-motion number(s): Judge: FRANCIS T. COLLINS Bergman, Bergman, Goldberg & Lamonsoff, LLP Claimant's attorney: By: O'Connell and Aronowitz Stephen R. Coffey, Esquire and Cristina D. Commisso, Esquire Honorable Eric T. Schneiderman, Attorney General Defendant's attorney: By: Belinda A. Wagner, Esquire Assistant Attorney General Third-party defendant's attorney: Signature date: March 16, 2012 City: Saratoga Springs Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Claimant seeks damages for injuries sustained in a motorcycle accident which occurred on a curve on Route 8 in the Town of Hague, New York. The decision herein follows a bifurcated trial on the issue of liability.
Claimant, Casey Politi, testified that he, his brother Victor Politi and two other friends drove their motorcycles from Long Island to the Village of Lake George, New York to attend Americade, a motorcycle rally. The group arrived in Lake George on June 7, 2007 and, on June 8, 2007, decided to participate in a scenic ride led by Victor Politi's friend, Camille Codoluto. Ms. Codoluto, who resides in Lake George, selected the route and was the lead rider. Claimant testified that he began riding motorcycles at the age of six (minibikes) and continued until he was married at the age of twenty-six. He stopped riding at that point until 2003 when he purchased a Harley Davidson Sportster. He explained during his cross-examination that he underwent back surgery in 2005 and rode his motorcycle a total of approximately 500 miles in both 2006 and 2007.
Mr. Politi testified that the weather on June 8, 2007 was sunny and warm and road conditions were very good. The group left Lake George and eventually traveled east on Route 8. The area of Route 8 approaching the curve where claimant's accident occurred proceeds downhill at an approximate seven percent grade. Eastbound vehicles first encounter a winding road/20 mph signlocated 1029 feet west of the curve entrance followed by a single right arrow sign at a right hand curve. There follows in succession a curve bearing left, a curve bearing right and the curve bearing to the left where the claimant's accident occurred. A 30 mph speed limit sign for eastbound traffic is located 305 feet west of the entrance to the curve at a point where the first right hand curve in the series ends and the road transitions to the beginning of the first left hand curve. The subject curve is marked by three yellow and black chevron signs and is bordered on the south by a parking area composed of sand and gravel and having two separate exits/entrances accessing Route 8, both of which have paved aprons.
The winding road/20 mph sign referred to herein largely in the singular is actually two separate signs displayed on a single post or pole.
As they approached the curve where the claimant's accident occurred Camille was the lead rider, followed by Victor Politi, the claimant, Michael VonDerlieth and others. Claimant observed the winding road/20 mph advisory speed sign depicted in Exhibit E-3-A. According to the claimant, he understood the sign to mean that drivers should slow their vehicle to 20 mph and that there were turns upcoming. As they continued downhill toward the subject curve, the claimant observed the 30 mph speed limit sign shown in Exhibit E-4. He testified "I remember looking at that sign. I remember looking at my speedometer accordingly, and know that I was doing that speed . . . 30 mph when I looked" (Tr. p. 190). The group continued past the 30 mph sign with Camille in the lead followed by Victor Politi, the claimant and Michael VonDerlieth. Having observed the 30 mph speed limit sign, and there being no other signs prior to entering the left-hand curve at the bottom of the downhill grade as depicted in Exhibit 4, claimant believed that the 30 mph speed limit was controlling for vehicles entering and passing through the curve. As he entered the curve, claimant was operating his motorcycle in third gear and observed his brother Victor approximately 60 feet in front. He then entered the area depicted in Exhibit 22 traveling at approximately 30 mph and leaning to the left while negotiating the left-hand curve. The claimant marked Exhibit 22 (Exhibit 22-A) to show the point at which he applied his brakes and downshifted, and simultaneously lost control when his rear tire began to fishtail. According to the claimant "I don't think I would have had a problem if it was a clean road. If there was no sand, I think - - the fact that I did have to brake, the manner I did, and the sand on the road was a factor" (Tr. p. 198).
The claimant released the brake once he felt the rear tire begin to fishtail "and I started to straighten up a little bit, and started to gain control" (Tr. p. 201). As his motorcycle straightened the claimant "started veering off the road" toward the second, or most easterly chevron depicted in Exhibit 22-A (Tr. p. 201). He again leaned to the left attempting to complete the curve without leaving the roadway. His vehicle crossed the white line at the outside edge of the eastbound lane of Route 8 and entered an area of dirt and gravel outside the shoulder. The claimant testified that he was not anticipating encountering dirt and gravel as his motorcycle left the roadway "and I couldn't gain control to negotiate the turn" (Tr. p. 203). Claimant went on to testify that when he encountered sand and gravel "[b]asically, I - - I could not control it now. I couldn't brake the way I wanted to, and I wound up, ultimately, hitting the guardrail" (Tr. p. 204). Unable to control his motorcycle, claimant struck the guardrail at the point indicated on Exhibit 22-B. One of the foot pegs on the right side of claimant's vehicle became caught in the guardrail and the claimant was "ejected into the air" (Tr. p. 212).
Claimant identified Exhibit 21 as the sand and gravel area he traveled through between leaving the paved surface of the roadway and impacting the guardrail near the chevron. According to the claimant, his motorcycle left the paved shoulder at a point between the grassy area depicted on the right-hand side of Exhibit 22 and the second chevron at or near the guardrail. Claimant testified that the path taken was "almost dead at the chevron" (Tr. p. 220). Finally, claimant testified that as his vehicle left the paved shoulder and entered the area of dirt and gravel depicted in Exhibit 21 "I felt a drop, and I felt - I could tell that the ground - it wasn't the pavement. I could feel that . . . I was aware of that at that time" (Tr. pp. 220 - 221).
Claimant was hospitalized in Burlington, Vermont following the incident. He recalled receiving a telephone call from a police officer while in the hospital but could not recall at trial any of the conversation. He described his condition at the time he received the telephone call as "very groggy, you know, incoherent" (Tr. p. 213). Claimant explained that he had been subjected to two operations while hospitalized including a reconstruction of his jaw and the insertion of a rod and pins in his leg.
On cross-examination the claimant testified that he observed the winding road/20 mph sign depicted in Exhibit E-3-A as he operated his vehicle on Route 8 and that he understood the sign to indicate, in part, that multiple curves lay ahead. Claimant reduced his speed to approximately 20 mph and continued proceeding east, downhill, on Route 8. He then encountered the 30 mph speed sign at which time he testified "I was doing between 20 and 30" (Tr. p. 235). Claimant testified "when I came upon that sign, I was - I accelerated" (Tr. p. 235). After passing the 30 mph sign the claimant could see an upcoming curve which turned to the left as well as the chevrons depicted in Exhibit E-5. He let off the gas when he first observed the chevrons and reduced his speed to something less than 30 mph. He continued to reduce his speed using his throttle but does not recall downshifting or braking in the area of Route 8 shown in Exhibit E-6. In the area depicted in Exhibit E-7 the claimant downshifted from third to second gear and applied his front and rear brakes. Exhibit E-7 contains two separate groupings of circles drawn by the claimant at his examination before trial representing the areas where he observed gravel in the roadway. Claimant testified to the following relative to his observation of gravel in the roadway as he entered the curve:
"I was more worried about the turn than the gravel at that point, but when I started braking, I realized that there was gravel - a lot of gravel there. It was affecting my - my braking" (Tr. p. 241).
Claimant testified that he observed both areas of gravel as shown on Exhibit E-7 prior to actually entering the curve. He estimated the gravel was approximately the size of a nickel or dime. He then marked Exhibit E-7 (Exhibit E-7-A) to indicate the point at which he first applied his brakes. That point is located within the most westerly of the two groupings of gravel as marked on the photograph by the claimant at his deposition. It is at that point that the claimant applied his brakes, downshifted and felt his rear wheel begin to fishtail. Claimant concluded his cross-examination by acknowledging he did not testify at his deposition that he felt a drop-off when he entered the gravel parking area or that he recovered control of his motorcycle and attempted a second time to complete the curve prior to contact with the guardrail.
On redirect examination the claimant testified that he was not asked at his deposition what path his motorcycle took when exiting the roadway. In this regard, claimant marked Exhibit 21 (Exhibit 21-A) to indicate the point at which he left the pavement proceeding toward the guardrail in a generally straight line.
Finally, on re-cross-examination, Mr. Politi testified that although he left the roadway in a straight line from the point indicated on Exhibit 21-A, he thereafter again leaned to his left and brought the vehicle back toward the roadway surface before striking the guardrail.
Camille Codoluto, a paramedic and resident of Lake George, New York, has known the claimant's brother, Victor Politi, since the 1980's or 1990's when he was teaching emergency medicine for the New York City Police Department. She also knows the claimant, having met him once or twice before the accident. Because of her familiarity with the Lake George area, she led the group of motorcycle riders on the date of the accident.
The group took Route 9 to Route 28 to Route 8 east. According to the witness, Route 8 goes through the Town of North Creek, "opens up" to a two lane highway, and then "closes in" as you reach the Town of Hague (Tr. p. 303). She had ridden a motorcycle on Route 8 at least 50 times before the accident, and many times since then, and stated she "distinctly" remembered seeing the winding road/20 mph advisory speed sign depicted in Exhibit E-3-A, which she estimated was between one-quarter and one-half mile before the accident site (Tr. pp. 306-307). Ms. Codoluto stated she was traveling approximately 25 to 28 mph at the time she passed the winding road/20 mph sign and described the road at that point as very windy and including a "blind curve" to the left before entering the Town of Hague (Tr. p. 309). She described this particular curve as the most dangerous on Route 8 because of "the downhill slope , the angle of the turn, and the inability to see past it" (Tr. p. 309). On the date of the accident she traveled through the curve at a speed "no more than 25, 28 miles an hour" (Tr. p. 310). The witness testified that although she was "off the throttle", she maintained her speed going through the curve due to the momentum produced by the general downhill slope of the roadway (Tr. p. 311). She did not apply her brakes as she drove through the curve because in her view she was not going fast enough.
The witness testified that she was "just past the guardrail" when she heard a loud noise and looked in her rearview mirror to see the claimant's motorcycle spinning in the road (Tr. p. 317). She parked her motorcycle and she and Robert Emer began searching for the claimant on both sides of the road, ultimately locating him "down by the creek" (Tr. pp. 326-327).
Although she testified that she did not observe sand or gravel on the road surface as she drove through the subject curve immediately prior to claimant's accident, the witness testified that, after the claimant was removed from the scene by ambulance, she went home to get her trailer in order to transport Victor and Casey Politi's motorcycles from the scene. Upon returning to the site where the accident occurred she made the following observation regarding the condition of the road (Tr. p. 328):
"Q. . . . Did you have a chance when you came back to look on the road at that point?She testified that she has previously observed gravel in the same general area on Route 8 because "[t]here's a driveway kind of thing there, and the gravel always falls from it" (Tr. p. 329). The witness testified that, in her experience, it would not be possible for an individual operating a motorcycle to negotiate the subject curve at 40 mph. In her view, even 35 mph would be "pushing it" (Tr. p. 329).
A. Yes.
Q. And what did you see on the road?
A. Gravel.
Q. And how much gravel did you see?
A. A handful - -
Q. Okay.
A. - - two handfuls".
On cross-examination, Ms. Codoluto testified that in fact she was not traveling between 25 and 28 mph just prior to entering the curve. Instead, she testified she was going only 20 mph because she recalled looking at her speedometer which "was closer to 20" (Tr. p. 337). She explained "I gave a little more gas so I could get up to the turn, and went through. So that's why I said 25 to 28, because I was being fair" (Tr. p. 339). She also testified that upon her return to the accident scene, she observed 50 - 100 quarter-sized pieces of gravel in the roadway, in the area of the green circle on Exhibit E-8-A. According to the witness, there was a lesser amount of gravel in the travel lane than there was beyond the white line demarcating the beginning of the shoulder. On redirect examination, the witness drew a green circle on Exhibit 22 (Exhibit 22-C) indicating the area where she observed the gravel. She agreed that as the leader of the group, she controlled the speed at which they traveled. She also restated that in her opinion it was "impossible" for any of the group to have proceeded through the curve at 35 or 40 mph (Tr. p. 356). On questioning by the Court, the witness testified that although she generally used hand signals to indicate slow down, single file, and debris in the roadway; she used no hand signals as she entered the curve where the accident occurred. She also reiterated her prior testimony that she did not observe sand or gravel on the surface of Route 8 as she traveled through the subject curve. Dr. Victor Politi, claimant's older brother, was riding with the group on the day of the accident and testified on claimant's behalf at trial. The group of seven motorcyclists was led by Camille Codoluto, who was followed by Dr. Politi, the claimant Casey Politi, Michael VonDerlieth, Dominic Vissichelli, Warren Goldfarb and Scott Heller, in that order. As they proceeded east on Route 8, Dr. Politi recalls observing a sign warning of multiple curves ahead with a 20 mph sign also affixed thereto. He interpreted this sign to mean that "it's a curvy road up ahead, and that you should slow down to 20 miles per hour . . .[o]r that it's recommended that you slow down to 20 miles an hour" (Tr. p. 49). He recalled the area depicted in Exhibit E-5, located just east of a 30 mph speed limit sign, which includes a curve to the right followed by a sharp curve to the left with two chevron signs visible. He characterized the curve to the left as a "blind turn", one in which you "cannot see the apex or the end of the turn" (Tr. p. 52). Dr. Politi testified that his speed entering the curve was 25 mph and that he was traveling approximately 2 - 3 car lengths behind Camille Codoluto. He successfully negotiated the curve and was crossing the bridge when he heard "somebody's wheels lock up" (Tr. p. 57). He then looked in his rearview mirror and saw what he described as dust or smoke. He made a u-turn on his bike, traveled west back over the bridge, and parked his motorcycle in the middle of the road in the area marked on Exhibit D-8-1. Dr. Politi then crossed the eastbound travel lane and "jumped right over that fence, and started attending to Casey's injuries" (Tr. p. 59). According to the witness, claimant's motorcycle was "probably" located near the handwritten X on Exhibit E-8, although he could not be certain (Tr. p. 59). He did, however, recall that he observed sand and gravel on the surface of the road as he completed parking his motorcycle and crossing the road to attend to his brother's injuries.
Claimant was first hospitalized in Ticonderoga, New York and was later airlifted by helicopter to a trauma center in Burlington, Vermont. While Dr. Politi was visiting his brother in the Intensive Care Unit one or two days after the accident, he answered a telephone call from the Warren County Sheriff's Department asking to speak with Casey. Dr. Politi explained that his brother was on a morphine pain pump and was drowsy and disoriented. Nevertheless, the claimant spoke to the individual on the phone and the witness testified he heard his brother say "he was going approximately 30, 35 miles an hour" (Tr. p. 72). He described his brother's condition at that time as "confused, disoriented" (Tr. p. 66).
On cross-examination, Dr. Politi testified that following the accident he parked his bike on the double yellow lines and proceeded across the eastbound travel lane of Route 8 (Tr. p. 95). He described the dirt and gravel as "[j]ust a couple of stones, that's all. Wasn't a whole collection of - - of dirt, it was just a couple of stones, couple of loose rocks" (Tr. p. 95). The witness marked Exhibit D-8 (Exhibit D-8-1) to identify the location of the stone and gravel he observed in the roadway. On re-direct examination the witness clarified that the marks he made on the photograph were estimates.
Michael VonDerlieth, a paramedic and a longtime friend of the Politi's, was traveling 3 - 4 car lengths behind the claimant when the accident occurred. He testified that he "could see Casey the whole time" and that he observed the claimant brake hard as he negotiated the curve and begin to lose traction. The rear wheel of claimant's motorcycle began to "fishtail", which he described as "the rear wheel sort of wobbles" in an oscillating motion (Tr. pp. 124, 144). Claimant stopped braking, straightened the bike upright, and continued off the road in the direction of the most westerly chevron sign and onto a surface the witness described as "like dirt" (Tr. p. 130). He then tried to complete the turn to the left but the bike scraped alongside the guardrail until something "snagged" the bike, which stopped it violently, and caused the back wheel to come up and claimant to be launched into the air and over the guardrail. Mr. VonDerlieth was traveling approximately 25 mph when he saw the claimant begin to fishtail.
On cross-examination, Mr. VonDerlieth testified that he applied his rear brake when he saw claimant was in trouble. He thought he was going to crash but made it around the curve. Dominic Vissichelli was behind him and also made it through the curve. Victor Politi and Camille Codoluto were on the easterly side of the bridge when he arrived. He parked his bike and ran back to Casey. The witness acknowledged that he provided a statement to the Warren County Sheriff's Department in which he stated that after Casey fishtailed and recovered "Casey was on the shoulder next to the guardrail, and then struck the guardrail, and Casey launched over the guardrail, and came to rest next to a concrete abutment" (Tr. pp. 165-166; see also Exhibit V).
On redirect examination the witness explained that when he told the police that Casey was on the "shoulder", he was referring to the area beyond the solid white line, including both the paved and unpaved areas. When the witness observed claimant leave the road, he "jammed" on his rear brake to avoid the accident, downshifted, and experienced no further difficulty negotiating the curve (Tr. p. 169). He does not recall observing any substance of any nature in the roadway in the area where he first observed the claimant in trouble. He then qualified this statement by testifying that he could not recall whether or not there was any sand, gravel or stones in the area.
Claimant called Reed Sholtes, a Civil Engineer employed by the New York State Department of Transportation. Mr. Sholtes has worked in the Department's Office of Traffic Safety and Mobility supervising the Traffic Operations Section for 16½ years. This section receives complaints or concerns regarding State highways, initiates traffic studies and determines safe traveling speeds.
Mr. Sholtes testified that, pursuant to the record plans (Exhibit A), Route 8 was originally constructed in 1919. According to the 1919 plans, the radius of the curve where the accident occurred was 200 feet. Referencing plans for the 1990 reconstruction of Route 8 (Exhibit B), Mr. Sholtes testified that he did not know whether the radius of the curve as shown in the plans was 200 feet. However, he was able to discern from the plans that the superelevation of the curve is four percent. To the witness' knowledge, the curve has not changed since 1990. Viewing a photograph depicting a winding road sign with a 20 mph sign affixed thereto (likely referring to Exhibit E-3-A), Mr. Sholtes testified that the 20 mph advisory speed was determined by using a ball banking device, which he described as a steel ball contained in a tube which is mounted on a vehicle and records the degree to which the ball shifts while traversing the radius of a curve. The correct curve advisory speed is the maximum speed at which the ball shifts less than ten degrees. A ball banking device is used only to determine advisory speeds, not regulatory speeds. Mr. Sholtes testified that the regulatory 30 mph speed limit sign depicted in Exhibit E-4 indicates the maximum allowable speed under ideal conditions, while the advisory speed sign reflects the recommended speed for vehicles negotiating the series of curves on Route 8. Ball bank tests performed on the curve where claimant's accident occurred both before and during the 2003 Sucker Creek Bridge replacement project established 20 mph as the appropriate advisory speed for the curve (Exhibits I and J). No further ball bank tests were performed after the project was completed.
Mr. Sholtes testified that it was not standard practice, nor would it have been appropriate, to place a 20 mph advisory speed sign at the curve where the accident occurred because the Manual of Uniform Traffic Control Devices (MUTCD) requires the placement of a curve warning sign at least 200 feet in advance of a curve and also advises against placing the sign on a curve going in the opposite direction. The witness testified "at this location, 200 feet places it in the curve in an opposite direction" (Tr. p. 403).
Mr. Sholtes testified that, in his opinion, it would be unreasonable for an individual to believe, upon observing the 30 mph regulatory speed sign west of the curve, that he or she could negotiate the subject curve at 30 mph. He explained that the regulatory speed limit identifies the maximum speed under ideal conditions and that "given the geometry of that road, and the chevrons and that curve, I don't think a person reasonably would say they could go 30 miles per hour" (Tr. p. 399). Rather, the appropriate speed for the curve is the advisory speed of 20 mph established by the winding road/20 mph sign. While the 30 mph regulatory speed limit exceeded the advisory speed, Mr. Sholtes stated that 30 mph was not necessarily a dangerous speed for that curve. An advisory speed only expresses a "comfortable" speed for negotiating a curve and not the fastest speed at which one could complete the curve without incurring injury or damage.
Mr. Sholtes testified that there was sand and gravel "near the shoulder" of the roadway in the area of the subject curve. When asked whether or not he reviewed the Sucker Creek Bridge replacement plans in order to determine whether the "apron", presumably at the eastern entrance to the parking area, was to extend to the guardrail, he responded that he did not because it was outside his area of responsibility.
In a memorandum from Mr. Pulsifer to William Logan dated November 18, 1999, Mr. Pulsifer requested information regarding the "85th percentile speed adjacent to the bridge" (Exhibit H, p. 3). Mr. Sholtes testified that the 85th percentile speed is the speed at which 85 percent of the vehicles sampled travel. As the result of a traffic study, a determination was made that the 85th percentile speed "through the corridor of that entire project" was 50 km/h or 31 mph (Tr. p. 416; see also Exhibit H, Memorandum from R. Sholtes dated January 5, 2000).
Assuming a distance of 1,100 feet from the winding road/20 mph sign to the accident site, Mr. Sholtes agreed that a vehicle traveling at a speed of 20 mph would reach the accident site in 36 seconds. Reviewing the 1990 plans (Exhibit B), Mr. Sholtes testified that the distance from the winding road/20 mph advisory speed sign to the 30 mph regulatory speed limit sign was approximately 700 feet. He explained that the 30 mph sign does not override the 20 mph advisory speed applicable to the series of curves. Rather, the 30 mph sign identifies the maximum speed limit for those approaching the Hamlet of Hague.
Mr. Sholtes testified that the plans received as Exhibit C apply only to the maintenance and protection of traffic during the construction phase of the Sucker Creek Bridge replacement project stages 1 and 3, and reflect a temporary realignment of the roadway leading to the bridge during the course of construction. The Final Design Report for the project was received as Exhibit 8.
Defense counsel's objection to questions relating to the design and radius of the subject curve was sustained as claimant did not allege that the defendant was negligent in the design of the roadway and made no mention of the curve radius or superelevation in his claim or bill of particulars (Tr. pp. 437-441).
Claimant also sought to introduce reports of two prior motorcycle accidents, the first in 2005 and the second in 2006. Inasmuch as it appeared that the 2005 accident was at a different location, claimant's counsel withdrew his request to introduce the 2005 report (Tr. pp. 449450). The report relative to the 2006 accident was excluded because the operator of the motorcycle in that case lost control in the gravel parking area adjacent to the curve, not in the curve itself, as is the allegation here (Tr. p. 451).
On cross-examination the witness again explained that the advisory speed was the recommended speed , and the regulatory speed was the legal maximum speed for vehicles traveling through the Route 8 corridor in an eastbound direction. The speed limit on Route 8 prior to the 30 mph speed limit sign was 55 mph. While a motorist negotiating the subject curve at 25 mph may be exceeding the advisory speed, he or she was not in violation of the regulatory 30 mph speed limit.
Exhibit I is a memorandum from Mr. Logan to Mr. Pulsifer dated November 28, 2000 in which the results of ball bank tests of the curves in the subject area are reported. Ball banking was performed at 3 speeds - 15, 20 and 25 mph. Upon completion of the tests it was determined that the advisory speed should remain 20 mph for the series of curves.
The witness testified that Exhibit J contains information regarding ball bank studies performed in relation to a temporary detour in effect during the construction phase of the Sucker Creek Bridge replacement project. Mr. Sholtes explained that a temporary bridge was constructed north of the existing bridge and the road was realigned to detour traffic across the temporary bridge. Upon completion of the new bridge, it was intended that the detour would be removed.
Returning to the issue of speed zones, the witness testified that an area speed limit regulates the speed in an entire area, which could encompass more than one road, whereas a linear speed limit applies to a particular corridor of a single road. Factors considered in establishing an area speed limit include speed studies, highway geometry, intersecting roads and development within the affected area. Exhibit K (17 NYCRR part 230), entitled Warning Signs, defines recommended and advisory speeds (17 NYCRR § 230.1 [c]) as follows:
"(1) Recommended speed is the maximum speed, under optimum conditions, which the authority having jurisdiction considers appropriate for a particular location. Factors such as alignment, sight distance, and physical conditions not readily apparent to approaching motorists are usually considered in determining a recommended speed.
(2) Advisory speed is recommended speed rounded to the nearest multiple of five miles per hour."
Exhibit K (dated March 31, 2001) was in effect in 2007, according to this witness (Tr. pp. 473-474).
Mr. Sholtes testified that an advisory speed sign is generally placed in advance of the condition to which it applies (Tr. p. 477; see also Exhibit K, 17 NYCRR § 230.2). Separate sections of the MUTCD govern highway alignment signs and advisory speed signs.
On redirect examination, Mr. Sholtes testified that the area where the winding road/20 mph sign was located for eastbound traffic was governed by a 55 mph speed limit. Both signs were in place in 1975 and Exhibit B reflects that the signs were removed and new signs were installed in the same location in 1990 (Tr. pp. 486-487).
Mr. Sholtes testified that a left curve sign is used to identify a single curve where the advisory speed is 20 mph or less (Tr. p. 488). The use of such a sign is governed by the MUTCD, which permits the exercise of engineering judgment. Slight deviations from the required placement of a particular sign are permitted (e.g., where the MUTCD requires the placement of a sign 200 feet in advance of a condition but it was placed only 199 feet from the condition). A left curve sign on the subject curve would not be appropriate, however, because it is one of a series of curves on a winding road for which the MUTCD requires the use of a winding road sign. On re-cross-examination the witness clarified that a left curve sign at the location of the accident would also be inappropriate because the minimum posting distances established in the MUTCD would require that it be placed in the preceding curve to the right, which is not permitted. Mr. Sholtes also explained that the speed determined by use of the ball bank test is not the absolute fastest speed that one could go around the curve, but only determines a comfortable speed.
The claimant called Lawrence Levine as an expert witness. After relating his background and experience, Mr. Levine stated that in preparation for his testimony he reviewed depositions, police reports, photographs and conducted a field investigation and survey of the site. In addition, he performed a ball bank test of the curve involved in the claimant's accident.
The witness testified that the speed limit on Route 8 varies between 55 mph and 30 mph. In addition, there are various advisory speed signs in effect along the roadway. He stated that the winding road/20 mph sign depicted in Exhibit E-3-A is approximately 724 feet west of the 30 mph sign shown in Exhibit E-4. He also related that the 30 mph sign in Exhibit E-4 is 305 feet from the point at which the curve where the accident occurred begins. Therefore, the total distance between the winding road/20 mph sign and the point of curvature is approximately 1,029 feet.
Mr. Levine testified that the curve where the claimant's accident occurred was addressed in the plans and final design report for a project to replace the Sucker Creek Bridge immediately east of the curve. Pursuant to those documents the curve was to have a radius of 150 feet and a superelevation of six percent. However, measurements taken by Mr. Levine at the site led him to conclude that the radius of the curve is not uniformly 150 feet. He testified "the curve tightens as one gets into it, possibly because the bridge was slightly shifted to the north as part of the reconstruction . . . [f]irst it starts at 150 and then it's more like 140-foot radius" at the point indicated by the witness on Exhibit E-7-E (Tr. p. 541). In addition, although the documents indicate that the superelevation of the curve was six percent both before and after the 2003 replacement of the Sucker Creek Bridge, his field investigation determined that, in fact, the superelevation for eastbound traffic is four percent. He then rendered an opinion that following completion of the bridge replacement project, the curve deviated from the project plans in that the curve radius varied from 150 to 140 feet and the superelevation was four percent and not six percent as described in the plans and design report. According to Mr. Levine "[t]he 150-foot radius, the six percent, were specifically called for. Any deviation from that is a deviation from the design unless it has been approved and changes are shown on the record plans as having been done" (Tr. pp. 556-557). In addition, the plans required that DOT traffic and safety personnel re-ball bank the curves after the completion of construction for the purpose of adding, deleting or changing signage. According to Mr. Levine, the failure to ball bank the curve following completion of the bridge construction project constituted an additional deviation from the plan. The witness stated that in his opinion the cited deviations from the plans relative to curve radius and superelevation created a danger to drivers, especially motorcyclists, driving through the curve.
Mr. Levine testified that although the 2003 bridge replacement plan specifically required DOT to ball bank the curve following completion of construction, no such action was taken. A ball bank test done prior to the commencement of the bridge replacement project determined that the appropriate speed for the curve in question was 20 mph. However, the 20 mph speed was appropriate for a curve with a 150 foot radius and six percent superelevation as envisioned in the plans. In light of his finding that the superelevation was only four percent, Mr. Levine opined that the appropriate speed for the curve was 15 mph. In this regard the witness testified that figure 231-1 of the (MUTCD) provides that the appropriate speed for a curve with a uniform 150 foot radius and four percent superelevation is 20 mph. Due to the "tightening" of the curve radius from150 feet to 140 feet, Mr. Levine determined that the appropriate speed for the curve was 15 mph.
The witness testified that in his opinion the 30 mph speed sign shown in Exhibit E-4 established the maximum speed for vehicles entering and proceeding through the curve. It was his opinion that a reasonable driver encountering the 30 mph speed limit sign, 724 feet east of the winding road/20 mph sign, would reasonably understand the 30 mph sign to be the controlling speed for the curve. He went on to testify that the failure of the State to post a "hard curve" sign and a 20 mph advisory speed sign at the curve constituted a deviation from established standards as well as the MUTCD. In this regard, Mr. Levine cited § 231.3 (b)(4)(iv) of the MUTCD which states, in part, the following:
"(iv) Within the series of curves, appropriate W1-1 through W1-8 signs may be used for individual curves, or curve combinations, having advisory speeds significantly lower than the other curves in the series. . . " (Exhibit K; see also Tr. p. 581).
Mr. Levine stated that "the curve in this case is the sharpest, tightest, smallest radius curve on the whole five-mile stretch of Route 8" and "was the only curve in that whole series that would have required a 20" (Tr. pp. 581, 583). Mr. Levine testified that there is no reason the State could not have mounted a hard curve sign with a 20 mph advisory speed sign following the 30 mph speed sign in order to instruct drivers that the appropriate speed for the curve was 20 mph. Mr. Levine did not believe that the winding road/20 mph advisory speed sign posted approximately 1,000 feet from the beginning of the curve applied to the curve in question, which he concluded was governed solely by the 30 mph speed limit sign. He testified:
"That far away and the way the road is aligned and curves and so forth, it really appears, even from the photograph you have of the 30-mile-per-hour sign that this isn't part of the series. It's 300 feet further. It's a straightaway almost and it's just a separate curve and you're in a totally different speed limit area" (Tr. p. 586).
He testified that had the defendant erected a hard left turn sign with a 20 mph speed advisory sign subsequent to the 30 mph speed limit sign, vehicles would have been forewarned to slow to 20 mph in negotiating the curve. The speed limit on Route 8 prior to the 30 mph sign is 55 mph and the roadway proceeds at a seven percent downhill grade for approximately four miles as one approaches the subject curve from the west in an eastbound direction.
The witness next described the entrances to the gravel parking area adjacent to the right shoulder of the curve, as one proceeds eastbound on Route 8, as approximately of equal size and separated by a grassy area. The western entrance, the first encountered by vehicles traveling in an eastbound direction, has a paved apron seven to eight feet wide and extending from the grassy area in the middle to a guide rail bordering the area. The eastern entrance is almost identical to the westerly entrance but with a paved apron which "goes a certain distance along the shoulder and then just ends abruptly" (Tr. p. 595). Mr. Levine also noted a 2 ½ inch drop-off where the edge of the paved apron ends and the gravel surface of the parking area begins.
According to Mr. Levine, the plans for replacement of the Sucker Creek Bridge called for paving a much larger area of the apron at the eastern parking area entrance. Referring to Sheet 45-R-1 of Exhibit C, the witness cited a note indicating "SEE DWG PA-1, LIMITS AOBE". The witness described Drawing PA-1 (Exhibit C, Sheet 42) as a "concept drawing for the parking lot" which demonstrates that the easterly entrance to the parking area was to have a paved apron that would extend throughout the area depicted in Exhibit 21 (Tr. p. 608). Mr. Levine opined that the failure of the State to pave the area to the full extent envisioned in Drawing PA-1 constituted a deviation from the plans and contributed to the second loss of control the claimant experienced after encountering the sand and gravel surface of the parking area. In this regard Mr. Levine stated "[i]n this particular curve, that's right where it ends, where this pavement ends, is the sharpest spot on that curve" (Tr. p. 617). He stated his further opinion that had the apron to the easterly entrance been paved as indicated in the plans "I believe [claimant] would have recovered and been fine" (Tr. p. 618).
Mr. Levine testified that although the 2003 bridge reconstruction plans (Exhibit C, Sheet 6) indicate a typical shoulder width of 1.2 meters or four feet in width "[i]f you go out there, it's not uniform at all" (Tr. p. 618). According to his measurements taken in the field, the width of the shoulder at the westerly entrance to the parking area is approximately three feet. However, referencing Exhibit E-7, Mr. Levine testified that the shoulder east of the grassy area between the two entrances narrows to one and one-half to two feet in width. The shoulder then widens to approximately four feet as one proceeds east just prior to entering the bridge.
In addition to the above alleged deficiencies, the witness stated that the 2 ½ inch drop-off between the parking area surface and the paved apron and shoulder at the eastern entrance violated the New York State Highway Maintenance Guidelines. Such a height differential between the paved surface and adjoining surfaces is described in section 2.000 of the Guidelines as "[q]uestionable safety indicates that a high percentage of drivers would experience significant difficulty in performing the scrubbing maneuver and remaining within the adjacent traffic lane and full loss of control could occur under some circumstances . . ." (Exhibit 27). It was Mr. Levine's opinion that the height differential between the paved surfaces and the gravel surface of the parking area constituted a deviation from the requirements of the Highway Maintenance Guidelines.
According to the witness the deficiencies and deviations related on his direct examination were, both cumulatively and individually, substantial factor(s) in causing claimant's loss of control and subsequent injuries. In this regard, he stated that the winding road/20 mph sign did not apply to the curve in question based upon the distance between that sign and the 30 mph sign, and the fact that "the 30-mile-per-hour speed limit sign suggests - - or tells the driver he can go faster" (Tr. p. 653). Secondly, it was his view that the 30 mph speed limit sign was installed based upon erroneous data contained in the 1990 construction contract which mischaracterized the curve as having a 200 foot radius and four percent superelevation. In reality, the radius of the curve was a non-uniform 150 feet and its superelevation was four percent according to his field investigation. The shoulder was not a uniform width and the defendant failed to install a 40 - 50 foot section of apron at the easterly entrance to the parking area. According to Mr. Levine, "it became a trap for a motorcyclist at the sharpest - - it is located at the sharpest point in the curve. Where the superelevation should be six percent, it's only four percent. The speed on the curve is a maximum of - - well, 20 by the graphical solution in the MUTCD" (Tr. p. 654).
He testified that the 30 mph sign installed prior to the curve was inappropriate and, instead, a sharp curve sign with a 20 mph speed advisory sign should have been posted at that location. Finally, Mr. Levine concluded his direct testimony by stating: "[I]t's my opinion that Mr. Politi, given the - - without the dropoff, would have stayed on asphalt if the apron had been there, and he would have just recovered and been able to get back onto the road . . . But given the fact that he was surprised, running out of- - he literally ran out of road. He ran out of asphalt and was suddenly and surprisingly set on to loose gravel on which his ability to operate the motorcycle was truly compromised at that point" (Tr. pp. 656-657).
On cross-examination the witness agreed that Exhibit C, the 2003 bridge replacement plans, reflect that the eastbound approach to the Sucker Creek Bridge was altered during the course of construction to accommodate the use of a temporary bridge. The witness also testified that although page 56 of Exhibit C contains a drawing indicating superelevations along the curve from negative six percent to positive six percent, during his field investigation he determined the superelevation of the curve was "four percent throughout the whole curve" (Tr. p. 666). With regard to Exhibit 8, the Final Design Report relative to replacement of the bridge, Mr. Levine agreed that the report describes the curve radius as 150 feet both before and after the bridge reconstruction and the existing and proposed superelevation as a maximum of six percent.
With regard to the elevation differential between the paved surface and the gravel surface of the parking area, Mr. Levine stated he took four or five measurements along a thirty-foot section of the shoulder and apron at the eastern entrance. According to the witness, a 2 ½-inch "dropoff edge" was noted along the eastern edge of the apron while in other areas examined the differential was less than 2 ½ inches and at some points no differential existed (Tr. p. 668).
Reviewing Exhibit E-7, the witness agreed that the chevrons visible in the photograph provided information to eastbound drivers indicating the existence of a curve. However, he went on to state that only one chevron is visible to a vehicle passing the 30 mph sign and entering the curve "so it really doesn't provide much of anything" (Tr. p. 673). Mr. Levine agreed that MUTCD section 231.3 (4) indicates that a W1-10 (winding road) sign is to be used where there are three or more curves of generally alternating direction separated by less than 600 feet. He agreed that there were more than three alternating curves on Route 8 as one approached the curve where the claimant's accident occurred from the east.
The witness agreed that the 30 mph regulatory speed limit sign established the maximum speed a vehicle can legally travel through the subject curve. He did not agree that the advisory speed on the curve was 20 mph, stating "if the 30-mile-per-hour sign were not - - the speed limit sign were not there, I might agree with you" (Tr. p. 681). He did agree that the correct advisory speed for the curve was 20 mph stating "[b]y ball bank, it certainly is 20" (Tr. p. 681). He also agreed that a motorcycle could negotiate the curve at 30 mph "if you do it just right and there's nothing else that happens" (Tr. p. 683). With regard to the radius of the curve, Mr. Levine testified that he was unable to confirm a uniform 45 meter radius stating "[i]t got tighter as you went through it" (Tr. p. 683). The witness acknowledged that section 2.000 of the Highway Maintenance Guidelines applies, at least in part, to "scrubbing". He then examined section 2.110 of the MUTCD and figure 14 relating to edge geometry and scrubbing, which he described as a phenomenon in which "the operator actually scrubs the inside surface - - well, base of the tire against the edge, and they have difficulty remounting the paved surface . . ." (Tr. p. 692). He did not indicate that the claimant experienced scrubbing of his tires against the edge as described in the MUTCD. Rather, he stated "each wheel would have dropped off the edge at a slightly different time which certainly would have affected his ability to control it" (Tr. p. 695).
Returning again to Exhibit C, he agreed that the bridge replacement plans provided that the limit of the gravel surface of the parking area was designated as "AOBE" or "as ordered by engineer" (Tr. pp. 696-697). He agreed that such a direction leaves the limits subject to the discretion of the engineer. He also acknowledged that Sheet 45-R-1 of Exhibit C indicates that the limits of the apron at the entrances to the parking area were also designated as "AOBE" and, therefore, subject to the discretion of the project engineer.
On redirect examination Mr. Levine testified that a left curve sign could have been posted where the 30 mph sign was located, although the 30 mph sign itself would have had to have been removed.
On re-cross-examination Mr. Levine agreed that had the 30 mph speed sign been removed and replaced with a left curve sign the regulatory speed for the curve would have been 55 mph. He went on to state, however, that "[i]f you remove the 30-mile-per-hour sign, okay, you would have had a 20-mile-per-hour squiggle for the series" (Tr. p. 712). He later stated upon further examination by claimant's counsel that the 30 mph speed limit sign would not have to be removed if the left curve sign included a 20 mph advisory speed sign.
The defendant called Frank Komoroske who has been employed by DOT as the Warren County Resident Engineer for eleven years. Mr. Komoroske testified that since becoming resident engineer he has traveled the roads within Warren County on a regular basis examining both the travel lane and shoulder for issues which require attention, including debris on the roadway surface. According to Mr. Komoroske, he has never observed sand, gravel or debris in the area of Route 8 depicted in Exhibits E-7 and E-8. Nor did he receive any complaints prior to June 2007 regarding debris in the roadway at that location. In addition, he received no complaints regarding the radius of the curve, signage at or near the curve or with regard to the shoulders of the roadway.
Mr. Komoroske identified Exhibit P as a sign inventory sheet dated January 15, 2009 for the area of Route 8 beginning at reference marker 1439 and ending at reference marker 1465. Page one of Exhibit P reflects the various installation dates of signs governing traffic proceeding in an easterly direction on Route 8.
On cross-examination Mr. Komoroske agreed that at his deposition he described the curve where the claimant's accident occurred as "a moderate curve on a highway in the Adirondack Mountains" (Tr. p. 764). In his testimony at trial he clarified that "as a highway in the Adirondacks, it would be moderate to severe" (Tr. p. 766). Referencing Exhibit P, he indicated the sign inventory reflects that a 20 mph advisory speed sign was placed on the eastbound lane of Route 8 on February 1, 1996. A winding curve sign was installed on August 26, 1999. Both signs were placed at the same reference marker on eastbound Route 8. In addition, a 30 mph speed limit sign was also installed in 1999.
The witness described an apron as "the paved area outside the shoulder at a driveway" (Tr. p. 782). He testified that an apron is not intended to prevent substances such as sand and gravel from entering the roadway. Rather, as he testified at his deposition, while an apron may prevent debris from entering a roadway, it is not one of the intended purposes for which an apron is installed.
On re-direct-examination, Mr. Komoroske stated that while the sign inventory (Exhibit P) indicates the date a particular sign was installed, the dates contained in the inventory may not reflect the date of original installation since signs are replaced periodically.
The defendant called Caleb Spaulding who testified he has been employed by the DOT as a Highway Maintenance Supervisor II (HMS II) in Warren County, New York since 2005. Prior to becoming a HMS II, Mr. Spaulding was employed as a Highway Maintenance Supervisor I in Essex County, New York.
The witness testified that his duties as an HMS II included organizing and dispatching road crews and traveling roads in the northern portion of Warren County "to make sure there's - - that they're holding their own and not needing any work" (Tr. p. 728). He explained that DOT is responsible for all maintenance activities on Route 8 in the area of the curve where the claimant was injured, except snow and ice operations, which are performed by the Town of Hague between November 2 and April 15 each year. The witness reviewed Exhibit L, a Daily Work Report which describes, in part, work performed on Route 8 between reference markers 1460 and 1462, and also reference markers 1406 and 1412, on May 17, 2007. Specifically, Mr. Spaulding related that the report reflects the referenced portions of Route 8 were swept using a "tractor broom" and a pick-up sweeper identified as a "Murphy Broom" (Tr. p. 733). The witness testified he inspected and approved the work reflected in the report.
Mr. Spaulding testified that he travels the portion of Route 8 where the claimant's accident occurred on a daily basis to inspect the roadway and insure that there is no debris or other condition which might pose a hazard to the traveling public. He testified he did not at any time observe dirt, sand, gravel or other debris in the area depicted in Exhibits E-7 and E-8 between May 2007 and June 8, 2007. Nor, to the best of his knowledge, did he observe any gravel or other debris in the roadway between January 2007 and May 17, 2007, the date sweeping work was performed.
On cross-examination the witness stated he has never seen sand or gravel in the area depicted in Exhibits E-7 and E-8 since becoming a HMS II in 2005. In fact, he testified that he has not observed sand or gravel either in the roadway or upon the shoulder of the curve depicted in Exhibit E-8.
The defendant called Major Christopher Lamouree of the Warren County Sheriff's Office as a witness. In June 2007 Major Lamouree was a patrol lieutenant and member of the Department's Traffic Safety Unit. He had received accident investigation training at the New York State Police Academy and the Institute for Police and Technology Management. In addition, the witness estimated he has investigated hundreds of accidents, including 100 motorcycle accidents.
Major Lamouree related that on June 8, 2007 he was contacted by a patrol sergeant and requested to respond to the claimant's accident. He related that during the course of his investigation of the accident he took written statements from Michael VonDerlieth and Warren Goldfarb. Major John Shawn secured a statement from Dominic Vissichelli, and the statement of Scott Heller was taken by Patrol Officer Wittenburg. Major Lamouree considered various aspects of the statements taken in reaching his conclusions regarding the happening of the accident. In particular, he noted that Michael VonDerlieth stated that he was traveling directly behind Casey Politi, and that Mr. Politi "braked hard", fishtailed and then appeared to recover control of his motorcycle (Tr. p. 1085).
In addition to witness statements and photographs taken at the scene, Major Lamouree testified that he walked throughout the area. The narrative he prepared that day includes a notation indicating that he "observed no sand or other debris in the roadway" (Tr. p. 1091). He testified that he observed "no signs of braking on the macadam" (Tr. p. 1093) and that there were a series of scratches and gouges in the roadway which resulted from the claimant's motorcycle sliding to its final position after impacting the guardrail. He testified that as a result of his observations at the scene, and his review of witness statements and photographs, he determined that imprudent speed was the causative factor in the occurrence of claimant's accident. In addition, he testified that although the accident report he prepared following the accident (Exhibit Y) indicates that sand or debris in the roadway also contributed to the accident, he explained that the reference to sand and debris in the roadway is based solely on a telephone conversation the witness had with Casey Politi on June 12, 2007. Despite listing debris in the roadway as a cause of the accident, Major Lamouree testified "it's nothing that I ever observed" (Tr. p. 1095). Major Lamouree testified that based upon his investigation it was his conclusion that the claimant's motorcycle struck the guardrail at a point indicated on Exhibit D-5-B.
On cross-examination, the witness testified that Casey Politi was hospitalized at the time of their telephone conversation on June 12, 2007. He did not observe skid marks in the roadway and again testified that the indication in the accident report that an obstruction or debris may have contributed to the accident was "based solely upon what Mr. Casey Politi had - - had told me on the telephone"(Tr. p. 1109). Although he testified previously on direct examination that he observed no sand or other debris in the roadway, he testified on cross-examination that "in one of the photographs, there's a depiction of some sort of gravel or something on the shoulder" (Tr. pp. 1111 - 1112). Major Lamouree stated he has never observed sand or gravel in the roadway on the curve where the claimant's accident took place.
Reviewing Exhibit 21, the witness testified that the photograph depicts a macadam apron which transitions to a sand or gravel surface. Upon questioning from the Court, Major Lamouree testified that he "walked the entirety of the scene" and specifically recalls inspecting the area depicted in Exhibit 21, which he stated contained no tire marks, skid marks or any other disturbance which could be attributable to the claimant's motorcycle proceeding through the sand and gravel portion of the area depicted in Exhibit 21. Major Lamouree testified "I did not observe anything like that" (Tr. p. 1124).
On re-cross-examination the witness acknowledged that his report does not specifically exclude the possibility that claimant's path of travel went through the sand and gravel area shown in Exhibit 21. In addition, no photographs were taken of the sand and gravel area as part of the investigation. Upon further questioning by the Court, the witness concluded "I did not see anything that would indicate Mr. Politi's motorcycle had traveled through that [sand and gravel] prior to impacting with the box guardrail" (Tr. p. 1129).
The defendant called William Logan as its expert witness. Mr. Logan has been a Licensed Professional Engineer in the State of New York since 1975 and, among other positions within DOT, was the Regional Traffic Engineer for DOT Region 1 from 1994 until his retirement in 2005. As Regional Traffic Engineer the witness was responsible for a staff of fifty to sixty employees including a Design Review Group, which reviewed and collaborated with other DOT personnel on road design plans. His office also handled complaints related to traffic engineering and safety and established speed limits applicable to all state and local roads within Region 1. His staff was also responsible for installation and maintenance of warning signs on state highways within the region.
Mr. Logan first reviewed Exhibit 27, section 2.000 of the Highway Maintenance Guidelines. He testified that this section, which applies to gravel shoulders, is inapplicable to the site of claimant's accident which contains paved asphalt shoulders. Next, the witness reviewed Exhibit D-13 and testified that the parking area depicted in the photograph is an area provided for individuals fishing or hiking along Sucker Creek. As shown in Exhibit E-7, the parking lot contains two separate entrances. For purposes of the witness' testimony, the western entrance was labeled driveway number one and the eastern entrance driveway number two (see Exhibit E-7-B). Mr. Logan testified that the parking lot is composed of gravel, which was selected as a means of cleaning runoff water that would infiltrate through the gravel prior to entering Sucker Creek. He then testified that both driveway one and driveway two have paved aprons which are separate and distinct from the road shoulder. In this regard, he testified that a shoulder is intended to provide extra space for motorists who travel outside the designated travel lane or have broken down and to facilitate the removal of snow and ice. The purpose of an apron is to protect the integrity of a paved shoulder. According to the witness, driveway one contained an apron which covered the full width of the entrance while driveway two was only partially paved. The unpaved area east of the paved entrance to driveway two was gravel which abutted the edge of the shoulder. The witness took measurements of any dropoff or height differential between the paved apron and gravel surface of the parking area at driveway number two. He related that on one of his visits to the site he measured a height differential of two inches at the point of the apron closest to the shoulder which gradually decreased along the eastern edge of the apron to a point where the two surfaces became flush "as you proceed towards the parking area" (Tr. p. 808).
The witness described the term superelevation as "the banking of a highway as it goes around a curve to counteract . . . the centrifugal forces that want to push the vehicle off - off to the outside" (Tr. p. 808). Mr. Logan testified a field survey, including superelevations, was prepared for the curve depicted in Exhibit E-7. Referencing Exhibit 8, the final design report for the placement of the Sucker Creek Bridge, the witness testified that the report at page 10 indicates that the then-existing radius for the subject curve was 45 meters or 150 feet. The curve radius as proposed in the design report is also listed as 45 meters or 150 feet. The design report further established a maximum six-percent superelevation for the curve. Next, reviewing sheet 56 of Exhibit C, Mr. Logan testified that the superelevation for the most westerly entrance to the parking area, driveway number one (station 0 + 100), was approximately 5.8%. The superelevation at driveway number two (station 0 +120) was approximately 4%. The superelevation varied between the two points because, according to the witness:
"The highest superelevation is going to be in the middle of the curve, and now you're going to transition down to a tangent section closest - closer to the bridge. So your superelevation is going to gradually go from the highest down to your normal crown of the highway" (Tr. p. 822).
When asked whether he was able to confirm the superelevations contained in Exhibit C, Sheet 56, as part of his field investigation the witness replied "I could confirm that it's superelevated in the - - the correct directions" (Tr. p. 823).
The witness testified that pursuant to the final design report the curve in question was to have a single consistent radius. During his field investigation Mr. Logan drove through the curve and found a single, unvarying radius. He then gave his opinion that the curve was designed and constructed in accordance with good and accepted engineering standards and principles. He also opined, citing MUTCD 231.5, that the use of chevrons along the curve provided additional emphasis to motorists that the curve proceeded in a left-hand direction.
Turning to Exhibit I, the witness explained that ball bank tests were performed on the subject curve as a result of concerns raised at a Hague community meeting held to discuss replacement of the Sucker Creek Bridge. Ball bank tests performed at 15 mph, 20 mph and 25 mph determined that the appropriate advisory speed for the curve where the claimant's accident occurred was 20 mph. Mr. Logan described the process of ball banking a curve and critiqued the ball bank test performed by claimant's expert (Exhibit 38). First, Mr. Logan noted that the ball bank device which claimant's expert had mounted on a piece of wood moved during one of the tests. Proper procedure according to the witness would have been to affix the device to the vehicle so that "[i]t becomes part of the vehicle" (Tr. p. 831). In addition, he observed that the ball bank device utilized by the expert appeared to be biased by 2 ½ degrees to the right as he traveled otherwise straight portions of the roadway. He also noted that claimant's expert appeared to encroach upon the center line of the roadway rather than performing a smooth arc and that he experienced difficulty maintaining a consistent speed.
As part of his field investigation, Mr. Logan performed ball bank tests of the curve "[o]n two separate occasions, three times" (Tr. p. 838). On both occasions he determined that the appropriate recommended speed for the curve was 20 mph, the same speed used as the advisory speed on signs posted in the area examined. According to the witness, the graphic contained on page 2 of Exhibit Q (Part 231, Alignment Signs) is not used to establish advisory speeds within Region 1 because it is confusing and difficult to read.
The witness identified the sign depicted in Exhibit E-3-A as a winding road or W1-10 sign (see MUTCD § 231.3) supplemented with a 20 mph advisory speed sign. He testified that the winding road sign was utilized at the location shown in the photograph because it is appropriate for use where there exists a series of three or more curves separated by less than 600 feet (see MUTCD § 231.3 [b][4]). Use of an individual left curve sign at the subject curve was inappropriate, according to Mr. Logan, because "you cannot get the advance posting distance that's required by the Manual" (Tr. pp. 844-845) and because the left curve sign would be located within a right-hand curve. Specifically, Mr. Logan referenced MUTCD § 231.3 (d) (2) which states:
"A curve sign may be misleading if it is located on a preceding curve, particularly when that curve is opposite in direction to the curve shown on the sign. Wherever possible, placement of a curve sign on a preceding curve should be avoided."
As to advance posting distance, the witness testified that by applying the criteria established in MUTCD § 230, including a 25% increase in the posting distance based upon the roadway's negative 7 percent grade approaching the curve, the advance posting distance for any individual curve sign would be approximately 250 feet. The witness testified that the winding road/20 mph advisory speed limit sign depicted in Exhibit E-3-A was posted in conformance with both the MUTCD and good and accepted engineering principles. He denied that there was any conflict between the winding road/20 mph sign and the 30 mph speed limit sign further east, stating: "Every advisory speed on every highway is going to be less than the regulatory speed limit that is in . . . It would be a conflict if the advisory speed were higher than the regulatory speed limit" (Tr. pp. 854-855). He then rendered an opinion that the placement of the 30 mph regulatory speed limit sign was accomplished in conformance with good and accepted engineering principles. The witness concluded his direct testimony by stating his opinion that the signs placed in the eastbound lane of Route 8 as one approached the subject curve, as shown in Exhibit N, conformed with good and accepted engineering principles.
On cross-examination Mr. Logan testified that his staff was involved in reviewing plans for the replacement of the Sucker Creek Bridge. Specifically, his staff "reviewed design plans and assured that the traffic concerns were all satisfied" (Tr. p. 864). As Regional Traffic Engineer in charge of the Traffic Group, a portion of his staff would also have been responsible for signage in place on Route 8 in 2007.
Reviewing photographic exhibits depicting the curve (Exhibits E-5, E-6 and E-7), the witness testified that the shoulder at and extending east from driveway one appears to be of uniform width although he is not aware of any measurements which might confirm his conclusion. He also testified that the exhibits depict an apron approximately ten feet wide at driveway one. Mr. Logan testified that "the configuration" of driveway number two as depicted in Exhibit 21complies with the requirements set forth in the plans for replacement of the Sucker Creek Bridge (Tr. p. 874). He described the plans as "concept plans that said the final layout of this is going to be as ordered by the Engineer in Charge of the project . . .[t]he limits of the paving and the limits of the gravel were to be determined in the field by the engineer" (Tr. p. 875).
Although the witness testified that the possibility that vehicles exiting the parking area would deposit sand and gravel on the roadway was not "far-fetched", he had the same view with regard to the fact that State employees had never observed sand or gravel on the roadway in the vicinity of the parking area (Tr. p. 880). Reviewing Exhibit E-7-B, he testified that the Sucker Creek Bridge replacement plans indicated that the point at which the superelevation of the curve was six percent was "probably just beyond the Driveway No. 1, maybe in the middle of the grassy area" as depicted on the photograph. Although Mr. Logan determined the superelevation at two points on the curve during his site visit in March 2011, he did not confirm the superelevation at the point at which the plans indicate a six percent superelevation "[b]ecause at the time doing that investigation, I didn't - - didn't know of any significance to the six percent maximum that's been discussed here" (Tr. p. 889). He did, however, testify that he determined a superelevation of 5.9% east of the location marked with a "1" on Exhibit E-7-B "[j]ust before the - - the point where the plans show it as six percent" (Tr. p. 890). The witness did not disagree with Mr. Levine's statement that certain parts of the curve have a four percent superelevation. Although DOT personnel ball banked the curve prior to the Sucker Creek Bridge replacement project and determined the appropriate advisory speed for the curve to be 20 mph, Mr. Logan stated that he found nothing in the file to indicate the curve was ball banked again after the bridge replacement project was completed. However, the witness ball banked the curve at his site visit in March 2011 and determined that the appropriate advisory speed was, in fact, 20 mph. He stated that the advisory speed determined through ball banking "doesn't imply safety" but, rather, indicates the speed at which a curve may be negotiated without feeling the effects of centrifugal force (Tr. p. 899).
The witness stated his understanding that the winding road/20 mph sign was approximately 1,000 feet west of the 30 mph sign. With regard to the interaction between the signs, Mr. Logan testified that the 20 mph advisory speed continued to apply to vehicles traveling through the subject curve in an eastbound direction, despite the intermediary 30 mph maximum speed limit sign, because "[t]hat is the norm. That happens on every single advisory speed. It's within a speed limit that's higher . . . an advisory speed is less than the speed limit" (Tr. p. 906). He did, however, admit that the 30 mph sign could have been either removed or moved eastward beyond the bridge. Regarding the potential for placing a left-hand curve sign in advance of the curve, Mr. Logan agreed that the advanced posting requirements contained in the MUTCD are "suggested distances" which can be varied if consistent with good and accepted engineering practices. In this regard, the witness testified "[i]t doesn't say you cannot do it under any circumstances. It's engineering judgment" (Tr. p. 910). He agreed that although the MUTCD indicates that placement of a curve sign on a preceding curve can be misleading and should be avoided, it does not prohibit such placement. Mr. Logan testified that the claimant was informed that 20 mph was the appropriate speed for the subject curve by the winding road/20 mph sign and should not have been confused when he next observed the 30 mph sign. In his view, installation of a left curve/20 mph sign on the curve preceding the subject curve would have been confusing to eastbound drivers as reflected in the provisions of the MUTCD which discourage such placement. Placement of a left curve/20 mph sign at the point where the curve begins to turn to the left would violate the advance posting requirements of the MUTCD and could cause confusion in that a driver "wouldn't have even seen it until he's right on it" (Tr. pp. 918-919).
The witness testified that during the Sucker Creek Bridge replacement project the plans called for a detour which, in addition to the winding road/20 mph and 30 mph signs, envisioned installation of a left curve sign governing the subject curve. He then testified that neither the radius of the subject curve nor its superelevation were affected by the bridge replacement project. He also testified that the apron to driveway number two complied with the plans because "all those limits that you're talking about were at the discretion of the engineer" (Tr. p. 928).
Returning to the issue of a left-curve sign, Mr. Logan testified that the subject curve was part of the series of curves which preceded it. A left-curve sign would have been appropriate only had the subject curve been a single, isolated curve. He then testified that three chevrons were placed along the curve "[t]o identify to the motorist the alignment of the curve as it goes around" (Tr. p. 936). He again testified that the placement of a left curve/ 20 mph sign governing the subject curve would foster confusion stating:
"If it was placed as it's supposed to be placed, and would put it on the incorrect curve, a curve going in the opposite direction, that could be confusing, especially at night when you're coming down, all you can see is a sign saying go left, and actually the road is going right" (Tr. p. 941).
Finally, Mr. Logan stated that the 5.9% superelevation to which he previously testified was determined in June by a DOT survey crew. The witness had measured the superelevation at 2 points during his prior visit to the site on March 18, 2011.
On redirect examination, the witness testified that § 231.3 (4) (b) applies only to single curves. According to the witness, the subject curve was part of "a whole series of curves coming down the hill" (Tr. p. 949). He testified that application of the MUTCD requires the use of engineering judgment which could lead different engineers to reach different conclusions regarding proper placement of road signs.
The claimant called Lawrence Levine to testify in rebuttal. He testified to his belief that William Logan had misinterpreted MUTCD § 231.3 (d) (2) which he stated was applicable "where you have two individual curves that may be close to one another" (Tr. p. 1133). Rather, the applicable MUTCD section is § 231.3 (b) (4) (iv) which permits the use of curve signs where an individual curve or curve combination within a series of curves has an advisory speed or speeds significantly lower than other curves in the series. As a result, he stated that based upon a reasonable degree of engineering certainty, a left curve sign should have been placed at or before the curve where the claimant's accident occurred and the failure to do so constituted a deviation of applicable standards of care by the State of New York.
With regard to the requirements of the Sucker Creek Bridge replacement plans relative to the apron at driveway number 2, Mr. Levine testified that the plans not only specifically require that the apron extend through the unpaved portion depicted in Exhibit 21 but, also, that the revised drawings (45-R-1, 46-R-1) indicate that, in fact, pavement was installed at that location.
On cross-examination, the witness conceded that the Sucker Bridge replacement plans indicate that the limits of the pavement and gravel areas in and around the parking area were to be determined as ordered by the engineer in charge. In this regard he stated "that's right, and they would be changed on the plan and marked as such if they were changed" (Tr. p. 1139).
Defendant called Dennis Toaspern as an expert witness in the field of motorcycles and motorcycle accident reconstruction. Mr. Toaspern has worked exclusively as an expert and consultant in the field since 1986. Prior to 1986, he owned a multi-franchised motorcycle dealership. Mr. Toaspern has operated motorcycles for 55 years and completed a course of study at Northwestern University in motorcycle accident reconstruction. He has received additional accident investigation training and participated in numerous seminars on the subject.
Mr. Toaspern testified that the front brake is the most effective method for slowing or stopping a motorcycle because the weight of the vehicle is transferred from the rear to the front of the motorcycle as the brake is applied. According to Mr. Toaspern, "[t]he suspension compresses and the rear wheel tends to lift off the ground reducing its effectiveness" (Tr. p. 971).
The witness stated that in order to turn a motorcycle, an operator must lean. The degree of lean necessary to complete a turn depends upon speed, radius and superelevation. The greater the speed, the greater the degree of lean necessary to accomplish a turn. When a motorcyclist observes gravel on a curve the best course of action is to slow down without initiating any "violent" maneuvers, i.e., no excessive braking or turning (Tr. p. 978). According to Mr. Toaspern:
"It's inadvisable to brake heavily in a turn regardless of the reason that you're doing it. The problem is that the available traction is used up by the twin actions of turning and braking, and it's very easy to exceed the traction capabilities, the drag factor that's available to the motorcycle and to cause a motorcycle to slide out if you over apply either the front or the rear brake. They'll give you different results, over application of either brake. But it's inadvisable, in any case, to brake heavily in a corner" (Tr. pp. 979-980).
Heavy braking in a lean would cause a singular slide of the motorcycle; not an oscillating motion such as occurs when a motorcycle fishtails. In other words, hard braking while on a curve would cause the rear wheel to move to the outside. Fishtailing, on the other hand, is a back and forth motion similar to the motion of a fish swimming. If a motorcycle fishtails, it was not leaning more than one or two degrees, according to this witness. Downshifting and braking should be completed before "the motorcycle is into the turn substantially" (Tr. p. 982).
Viewing the photographs received in evidence as Exhibits D-17 and D-18, which depict the claimant's motorcycle after the accident, Mr. Toaspern testified that there were "transfer witness marks" indicating the areas of the motorcycle which came in contact with the guardrail. He testified that the rust-colored damage to the air cleaner depicted in Exhibit D-17 evidences contact with the box beam guardrail, and drew a circle on the photograph identifying the area of damage referenced (Exhibit D-17-A). The second point of contact is on "the left-hand fork tube slider" depicted in Exhibit D-18. A circle was placed on a copy of the photograph identifying the damage referred to (Exhibit D-18-A). Photographs taken by the Warren County Sheriff's Department (Exhibit D), show gouges in the pavement, and Exhibit D-5 shows the area on the box beam guardrail which the claimant's motorcycle struck. Based upon the photographic exhibits, Mr. Toaspern testified with a reasonable degree of certainty that the motorcycle came in contact with the guardrail "just past the connector joint, eastbound of the connector joint" (Tr. p. 1006; Exhibit D-5).
According to the witness, the proper manner in which to enter a curve is on the right wheel track which is two-thirds of the way over to the edge of the road from the center line. As the operator proceeds through the turn, he or she should move the motorcycle to the left wheel track, then back to the right upon exiting the curve. By proceeding through a curve in this manner, the effective radius of the curve is increased. Mr. Toaspern opined with a reasonable degree of certainty that "[a]n average motorcyclist could negotiate that turn at 40 plus miles an hour. Something less than 50 though" (Tr. p.1003). The basis for this opinion is both the radius of the curve and the condition of the pavement (no bumps or breaks). Negotiating a curve properly is a matter of leaning the bike the appropriate number of degrees and not braking or doing anything "significant" while in the curve, including changing course (Tr. p. 1004). Claimant's testimony that he downshifted from 2nd gear to 1st gear after he fishtailed but then was afraid to release the clutch was unreasonable, in the witness' view, because "it's not advisable to be in first or second gear at 20, 25 miles an hour" because "the speeding of the engine" promotes a loss of traction (Tr. p. 984). Mr. Toaspern completed his direct examination by stating his opinion that Casey Politi's operation of his motorcycle on the subject curve "was the wrong course of action to remedy what he perceived or misperceived as a hazard to travel" (Tr. pp. 1004-1005).
On cross-examination, Mr. Toaspern testified that contrary to the conclusion reached by the police, he does not believe excessive speed was the primary cause of the accident because in his opinion an experienced operator could negotiate the subject curve at 40 mph. However, Mr. Toaspern also testified that when he drove through the curve in preparation for trial he traveled at speeds of only 20 mph and 30 mph. Mr. Toaspern explained that he did not test the curve at 40 mph because he did not want to exceed the speed limit and, in any event, 40 mph was outside "the range of the eventual testimony that the speed around the corner was 20 to 30 miles an hour" (Tr. p. 1019). He acknowledged, however, that the police report states that claimant's speed was 35 to 40 mph.
The witness was next shown Exhibit 22-B, a photograph taken by the Warren County Sheriff's Department approximately one hour after the claimant's accident occurred. The witness agreed that the shadows on the roadway as shown in Exhibit 22 could affect visibility "a little bit, but not to a significant degree" (Tr. p. 1023). Viewing Exhibit D-3, Mr. Toaspern agreed that the photo depicted gravel east of the eastern-most apron "[a]t the very edge of the paved area" as well as small stones that he contended were carried onto the roadway by the claimant's motorcycle (Tr. p. 1038). The witness testified that the black marks on the roadway depicted in Exhibit D-9 did not appear to be stones or gravel stating "they're inconsistent with the presence of stones [or gravel] because of the lack of a shadow" (Tr. p. 1041).
Assuming the existence of sand and gravel in the roadway, claimant could have straightened the bike to the upright position, "dumped" the bike or rode it through the curve (Tr. p. 1055). Once the claimant straightened his motorcycle he would be pointing straight off the road toward the sand and gravel. The witness did agree that if a motorcycle were to encounter a significant amount of sand or gravel, it would affect the operator's ability to turn or brake. Exhibits D-3-A and D-4-A depict the area between the paved surface of the roadway and the guardrail where Mr. Toaspern opined the claimant encountered sand and gravel. According to the witness' testimony on re-cross examination, the "witness mark" on the guardrail indicates that the motorcycle made contact with and traveled alongside the guardrail for approximately six feet (Tr. pp. 1071-1072). When the witness was asked whether it would have made a difference had the area between the eastern apron and the guardrail been paved, he responded that assuming the claimant actually traversed the location, pavement would have enhanced the traction of his motorcycle in comparison to sand and/or gravel.
On redirect examination, Mr. Toaspern reiterated his conclusion that claimant reacted improperly by braking his motorcycle, an action that was neither recommended nor desirable under the circumstances. He further explained that a dusting of sand or gravel "in and of itself is not a significant hazard on this turn" (Tr. p. 1062). In order to decrease the friction and slide the near wheel outward, the quantity of sand or gravel would have to be "substantial" (id.).
The witness stated that claimant could have negotiated the curve at a speed of 25 to 28 mph, noting that the other motorcyclists succeeded in doing so, and one of the riders was even able to swerve to avoid the claimant's motorcycle immediately following the accident.
The State is subject to a nondelegable duty to construct and maintain its highways in a reasonably safe condition, taking into consideration such factors as the traffic conditions, terrain and fiscal practicality (Gutelle v City of New York, 55 NY2d 794, 795 [1981]; Tomassi v Town of Union, 46 NY2d 91, 97 [1978]). The State is not an insurer of the safety of its roadways, however, and the mere happening of an accident, without more, is insufficient to establish liability (Tomassi v Town of Union, 46 NY2d 91, 97 [1978]).
With respect to the alleged improper maintenance of a roadway, liability will not attach unless it is established that a defective condition existed, which the defendant caused or otherwise failed to timely remedy despite actual or constructive notice of its existence (Brooks v New York State Thruway Auth., 73 AD2d 767 [1979], affd 51 NY2d 892 [1980]).
The instant claim is predicated on two bases: First, that the State was negligent in failing to properly maintain the roadway where the accident occurred and, second, that it failed to properly sign the roadway, which was a proximate cause of claimant's injuries.
Claimant's allegations of negligent maintenance are premised on the contention that defendant caused and permitted sand and gravel to exist in the roadway. However, the Court is unpersuaded that there was a sufficient quantity of sand or gravel in the roadway to cause claimant to lose control of his motorcycle. Most persuasive in this regard are the police photographs of the area taken shortly after the accident occurred. The Court has examined the photographs, including those upon which claimant placed circles to specifically identify the alleged debris, and is unable to discern any significant accumulation of either sand or gravel on the road surface at the point where the claimant alleges he lost control of his motorcycle. Major Lamouree from the Warren County Sheriff's Department responded to the accident, inspected the area, and testified that he "observed no sand or other debris in the roadway" (Tr. p. 1091). Mr. VonDerlieth, who was traveling only 3 - 4 car lengths behind the claimant, testified that he could not recall whether there was sand, gravel or stones in the roadway (Tr. pp. 170-171). Notably, however, Mr. VonDerlieth testified that he "jammed" on his rear brake to avoid colliding with the claimant, yet was able to bring his motorcycle to a safe stop (Tr. pp. 169-170). Claimant's brother, Dr. Politi, described the condition on cross-examination as consisting of "[j]ust a couple of stones" in the road (Tr. p. 95) and Camille Codoluto, the leader of the group, described what she observed in the road, after the accident, as one or two handfuls of gravel (Tr. p. 328). This testimony together with the photographic evidence and proof that the subject curve was swept using both a "Murphy Broom" and a "Tractor Broom" on May 17, 2007, less than one month prior to claimant's accident, leads the Court to find that the claimant has failed to establish that sand or gravel in the roadway caused or contributed to his loss of control and subsequent injuries. The testimony of defense expert Toaspern that a motorcyclist experiencing a loss of traction while leaning into a curve would not fishtail in an oscillating back-and-forth motion is credible and consistent with the conclusion that neither sand, gravel nor any other debris caused claimant to lose control of his motorcycle. Thus, while the Court credits Mr. VonDerlieth's testimony that claimant's motorcycle fishtailed, the Court finds this occurred because he braked "hard" attempting to negotiate the curve, not because of the existence of sand or gravel in the roadway.
Even assuming the existence of sand or gravel in the road on the day of the accident, claimant failed to establish by a preponderance of the credible evidence that the defendant caused the condition or had actual or constructive notice of its existence (Loughren v County of Ulster, 75 AD3d 976 [2010]; cf. O'Buckley v County of Chemung, 88 AD3d 1140 [2011]). The record is devoid of any evidence that vehicles exiting the gravel parking area adjacent to the curve deposited sand or gravel onto the roadway surface (see generally Carpenter v J. Giardino, LLC, 81 AD3d 1231 [2011], lv denied 17 NY3d 710 [2011] [constructive notice may be established through evidence that defendant was aware of a recurring unsafe condition which regularly went unaddressed]). Thus, the allegation that the existence of a gravel parking lot adjacent to the roadway created a dangerous condition is unsupported. Moreover, any suggestion that sand or gravel on the road at this location was a recurring condition created by the State's failure to pave the apron was refuted by the testimony of Mr. Spaulding, the Highway Maintenance Supervisor, that daily inspections of Route 8 failed to reveal the existence of any debris or other condition which would pose a hazard to highway users. In addition, Mr. Komoroske, the Resident Engineer for Warren County, testified that he travels the roads within Warren County on a regular basis and has never observed sand or gravel on the road at the subject curve. Nor did he receive any complaints regarding such a condition prior to June 2007. Accordingly, the Court finds the claimant failed to establish that the defendant either created a dangerous condition or had actual or constructive knowledge of its existence.
With respect to claimant's remaining allegations of negligent construction and design of Route 8, the State is accorded a qualified immunity from liability arising from highway planning decisions (Friedman v State of New York, 67 NY2d 271, 283 [1986]; Weiss v Fote,7 NY2d 579, 585-586 [1960]). Qualified immunity may be overcome upon proof that " 'the plan either was evolved without adequate study or lacked reasonable basis' " (Alexander v Eldred, 63 NY2d 460, 466 [1984], quoting Weiss v Fote, 7 NY2d at 589). To meet this burden, claimant was required to proffer "something more than a mere choice between conflicting opinions of experts " (Weiss v Fote, 7 NY2d at 588). Rather, the Manual of Uniform Traffic Control Devices is the "reference point for measuring the reasonableness of DOT's decisions" (Zecca v State of New York, 247 AD2d 776, 777-778 [1998]). Notably, regulations which are not intended to establish mandatory standards are generally insufficient to overcome qualified immunity (Id.; see also Patti v State of New York, 217 AD2d 882 [1995]). Moreover, negligence alone is insufficient to establish liability where proximate cause is lacking (Schichler v State of New York, 110 AD2d 959 [1985], affd 66 NY2d 954 [1985]; see generally Atkinson v County of Oneida, 59 NY2d 840 [1983]; Hicks v State of New York, 4 NY2d 1 [1958]).
Claimant argues that the placement of the 30 mph regulatory speed limit sign 305 feet west of the subject curve (724 feet east of the advisory speed sign) was negligent because it caused him to believe that he could safely increase his speed to 30 mph to negotiate the curve. In support of this theory, Mr. Levine testified that the 30 mph sign shown in Exhibit E-4 established the maximum speed for vehicles entering and proceeding through the curve and that a prudent driver encountering this sign would reasonably believe that 30 mph was a safe speed for the curve. In making this argument, claimant proceeds on the assumption, not warranted by the evidence presented here, that 30 mph was an unsafe speed for the subject curve. In fact, Mr. Levine conceded on cross-examination that an automobile could negotiate the curve at 30 mph, and acknowledged the general consensus that a motorcycle can negotiate a curve at higher rates of speed than a car, although "that assumes that there's no sand and so forth" (Tr. p. 683). As Mr. Sholtes made clear, the fact that a curve has an advisory speed of 20 mph provides no support for the conclusion that a curve cannot be safely negotiated at greater rates of speed. Rather, an advisory speed is one in which the curve can be comfortably negotiated within certain limits of centrifugal force.
Claimant requests, albeit only in his post-trial brief, that the Court take judicial notice of § 212.3 (c) (2) (i) and § 212.3 (c) (3) (i) (17 NYCRR Part 212) to support his contention that the placement of the 30 mph regulatory speed limit sign before the curve in question was negligent. These regulations, which were superseded by the New York Supplement to the National Manual on Uniform Traffic Control Devices for Streets and Highways - 2003 Edition, effective September 13, 2007, proscribe the use of speed limit signs where there is a "community identification" sign at the same location. In such situations, the regulations require that speed limit signs be placed "beyond the community identification sign" (id.).Here, however, the 30 mph speed limit sign was located 305 feet west of the entrance to the curve, while the "Hague Brook" sign was posted at its far eastern terminus immediately west of the Sucker Creek Bridge. As such, the community identification sign was not located at the beginning of the 30 mph linear speed limit and the regulation cited is, therefore, inapplicable. Nor has it ever been claimant's contention that the placement of the 30 mph sign in close proximity to the "Hague Brook" sign was the cause of his confusion regarding the appropriate speed for that curve. Claimant's reliance on this section is therefore unavailing.
The analogous provisions of the current New York Supplement to the National Manual on Uniform Traffic Control Devices for Streets and Highways - 2003 Edition (17 NYCRR § 2B.13) state simply that "[w]here a Speed Limit sign and a Political Boundary sign . . . would conflict, the Political Boundary sign should be placed at a suitable location before or after the Speed Limit sign".
To the extent claimant contends that a single left curve sign should have been installed prior to the curve because it had the smallest radius of all the curves in the series, claimant, once again, proffers nothing more than the unsupported conclusory opinion of his expert to support this assertion. In rendering this opinion Mr. Levine relied upon § 231.3 (b) (4) (iv) which provides that when a curve within a series of curves has an advisory speed significantly lower than the other curves in the series, certain signs "may be used for individual curves". Regulations such as this, which are not intended to establish mandatory standards, are generally insufficient to overcome qualified immunity (Zecca v State of New York, 247 AD2d 776, 777-778 [1998]; Patti v State of New York, 217 AD2d 882 [1995]). This aside, there is no evidence that the curve where the accident occurred had the smallest radius of the curves in the series. While claimant's expert concluded that the curve radius changed when the bridge was constructed north of the one which it replaced, the evidence indicates otherwise. The final design report for the project reflects that while various design alternatives for the bridge were considered, the alternative chosen was the "Full Replacement Alternative on Existing Alignment" (Exhibit 8, p. 13). After considering the costs and benefits of a realignment of the western approach to the Sucker Creek Bridge, the report concluded that neither widening nor realignment was warranted:
"The west approach to the Route 8 bridge is located between Sucker Creek and a steep mountain side. Any widening or realignment of the highway in this area would require a major excavation of the mountain side. Since there were no accidents during the study period related to the highway geometry and there are no plans to widen or redesign the adjoining segments of Route 8, we believe that the social, economic and environmental costs of a major excavation within the Adirondack Park are not warranted. We propose to retain the existing alignment and provide a bridge width which matches the existing width of Route 8 west of the project limits" (Exhibit 8, p. 13).
In describing the Full Replacement Alternative on Existing Alignment option, the report states "The full replacement alternative would require the complete removal of the existing bridge and construction of a new structure in the same location" (Exhibit 8, p. 12, emphasis added). The report also contains a list of design criteria for the project, including minimum curve radius and maximum superelevation. With regard to curve radius, the report identifies both the existing (at the time of the report) and proposed radius as 45 meters or 150 feet. The existing and proposed superelevation of the curve are both noted to be six percent.
Mr. Logan likewise testified that neither the radius of the subject curve nor its superelevation were affected by the bridge replacement project. Inasmuch as the proof establishes that the western approach to the bridge remained unchanged, the fact that the subject curve was not ball banked upon completion of the project is irrelevant. The series of curves were ball-banked in 2000 at speeds of 15, 20 and 25 mph and, as a result, a 20 mph advisory speed limit was determined to be appropriate. This series of curves were again ball banked in 2011 with the same result. The contrary determination of Mr. Levine that the appropriate advisory speed for the subject curve was 15 mph was undermined by his testimony that this conclusion was based on the false premise that the alleged "tightening" of the curve radius was likely attributable to the fact that "the bridge was slightly shifted to the north as part of the reconstruction" (Tr. p. 541). Both the Final Design Report (Exhibit 8) and Record Plans (Exhibit C) reflect that the bridge was replaced in the same location and that the alignment of the road was unchanged, except during the period a detour was in effect. As a result, the expert's conclusion with regard to the appropriate advisory speed for the subject curve is unpersuasive. Given the permissive tenor of § 231.3 (b) (4) (iv) and Mr. Levine's generally equivocal, unsupported testimony on the subject, claimant failed to establish that the advisory speed was significantly lower on the subject curve than the other curves in the series. The requirement of a single left curve sign was therefore not established.
Furthermore, the testimony of both Mr. Sholtes and Mr. Logan established that the use of a single left curve warning sign in advance of the subject curve would have resulted in its placement on a preceding curve opposite in direction to the curve shown on the sign. To avoid confusion, §231.3 (d) (2) of the then-existing MUTCD advised against this. The use of chevron signs, as were used on the subject curve here, is specifically recognized in § 231.5 (a) of the MUTCD as an appropriate alternative to the use of a single arrow sign. In these circumstances, this Court, as fact finder, may not second-guess the discretionary judgment of defendant's design professionals to utilize chevrons on the outside of the curve in conjunction with the multiple curve warning sign (Weiss v Fote, 7 NY2d at 585-586).
Defendant's decision-making process included the performance of ball bank tests on the four-curve series, together with an evaluation of the 85th percentile speed. Based on these tests, it was determined that the placement of a multiple curve warning sign with the 20 mph advisory speed attached was appropriate to warn highway users of the curves which lie ahead and the comfortable speed at which to negotiate them. Such determinations were within the range of discretion authorized by § 231.3 (a) (2) and § 231.3 (b) (4) of the MUTCD. Absent proof of a deviation from applicable engineering standards, defendant remains immune from liability for its judgmental exercise of discretion in the manner in which the Route 8 corridor was signed.
Moreover, the Court finds that no additional warning would have alerted claimant to the existence of the curve and the need to operate his motorcycle with caution any more effectively than the existing signs and the open and obvious nature of the roadway itself (see Stanford v State of New York, 167 AD2d 381 [1990], lv denied 78 NY2d 856 [1991]; Andrews v State of New York, 168 AD2d 474 [1990];Donato v County of Schenectady, 156 AD2d 859 [1989]; Tely v State of New York, 33 AD2d 1061 [1970]; Williams v State of New York, 34 AD2d 607 [1970], lv denied 28 NY2d 486 [1971]). In this regard the photographic series received as Exhibit N makes clear that ample and appropriate guidance was provided eastbound vehicles approaching the subject curve. Such vehicles first encounter the winding road/20 mph sign and then a single right arrow sign adjacent to the beginning of the first curve in the series. After negotiating the first right-hand curve, the subsequent curves in the series, including the subject curve and two of the three chevrons which surround the curve, become fully visible to eastbound traffic. Thus, there should be no surprise or confusion regarding the curve or its horizontal alignment given the substantial visibility provided vehicles approaching from the west. Furthermore, it is unrefuted that in the absence of the 30 mph speed limit sign the maximum speed limit applicable to both the subject curve and its approach would be 55 mph. The Court concludes, therefore, that neither the alleged failure to place an additional curve warning sign nor the placement of the 30 mph regulatory speed limit sign before the curve where the accident occurred were a proximate cause of the accident.
Claimant alleges in his post trial brief that deviations from the construction plans with respect to the width of the paved shoulder and driveway apron in the area where he left the eastbound travel lane were a proximate cause of his accident and injuries. He contends that Mr. Levine's testimony establishes that had the shoulder and apron been constructed in accordance with the plans for the reconstruction of Route 8 over Sucker Creek (Exhibit C), he would have been able to regain control of his motorcycle and complete the curve or bring it safely to a stop. Initially, the Court finds this far too speculative an assertion upon which to predicate liability. Moreover, the plans upon which claimant relies entrust the final determination with respect to the boundaries of the gravel parking surface and apron to the discretion of the engineer. As recognized by Mr. Levine, sheet 45-R-1 of Exhibit C specifically provides, through use of the acronym "AOBE" (as ordered by engineer), that the limits of both the apron and parking area surface were to be determined by the project engineer (Tr. p. 605, Exhibit C, Sheet 45-R-1). Relatedly, Mr. Logan testified that the gravel surface of the parking area acted to filter run-off before it entered Sucker Creek, which provides a logical basis for the flexibility reflected in the plans regarding the relative limits of the apron vis-a-vis the parking surface. Furthermore, claimant proffered no evidence to establish that the failure to conform to the suggested dimensions of either the apron or the gravel surface violated a customary practice or a generally-accepted standard in the industry (see Diaz v New York Downtown Hosp., 99 NY2d 542 [2002]; Chalk v State of New York, 147 AD2d 810 [1989]; Epstein v State of New York, 124 AD2d 544 [1986], lv denied 69 NY2d 605 [1987]). For these reasons, the Court finds claimant's arguments on this topic unavailing. There being no evidence that a determination had been made to pave a defined area in order to remedy a dangerous condition, liability may not result from a failure to do so (cf. Friedman v State of New York, 67 NY2d at 286).
As to the allegedly non-uniform width of the eastbound shoulder, claimant has arguably established a potential failure to fully comply with the project plans. He does not, however, allege that the shoulder was in disrepair or that its width at the point where claimant traversed the shoulder failed to meet any relevant requirements imposed by the MUTCD or other applicable highway design standards. While a failure to fully comply with the contract plans may support a claim for breach of contract by one in privity, it does not serve as a basis for an action alleging negligent design and/or construction of a highway without some evidence of a failure to meet established industry standards. As no such evidence was offered by the claimant at trial, liability has not been established. The claim does not allege a failure to properly design or construct Route 8 with respect to the superelevation or radius of the curve or the alleged 2-1/2 inch drop-off from the shoulder's edge. In fact, nowhere in the claim does it even refer to improper design, save for the issue of signage. Court of Claims Act § 11 (b) requires that a claim set forth, among other things, "the time when and place where such claim arose, the nature of same [and] the items of damage or injuries claimed to have been sustained . . ." "[B]ecause suits against the State are allowed only by the State's waiver of sovereign immunity and in derogation of the common law, statutory requirements conditioning suit must be strictly construed " (Kolnacki v State of New York, 8 NY3d 277, 280 [2007] [internal quotation marks and citation omitted]; see also Lepkowski v State of New York, 1 NY3d 201 [2003]; Czynski v State of New York, 53 AD3d 881 [2008]). Here, the instant claim failed to allege or otherwise apprise the defendant of the possibility that such design claims would be asserted. As a result, claimant is precluded from seeking to establish liability on this basis.
In any event, claimant proffered no evidence from which the Court could conclude that the curve was designed with an improper radius or superelevation. While the evidence did indicate that one method of determining advisory speed for a curve "may" be based on its superelevation and radius (see Exhibit Q [17 NYCRR § 231.2]), no evidence established a minimum superelevation or radius to which the design of a curve must conform. Here, defendant's expert, Mr. Logan, made clear that ball banking is the sole method utilized by the State for determining advisory speeds, not the radius and superelevation of a curve. No deviation from a standard relative to radius and superelevation of the subject curve was alleged and no such deviation was proven.
Likewise, no allegation appears in the claim with respect to the design of the shoulder or its alleged 21/2 inch dropoff. While Mr. Levine found this dropoff to be unsafe and a deviation from the applicable guideline (Exhibit 27), claimant did not testify the dropoff caused or contributed to the accident or prevented him from returning to the roadway.
Based on the foregoing, the Court finds that claimant failed to establish by a preponderance of the credible evidence that the defendant was negligent or that its negligence was a proximate cause of the accident. Rather, as indicated by Mr. Toaspern, the sole proximate cause of the accident was the manner in which the claimant operated his motorcycle while entering and negotiating the curve. Accordingly, the claim is dismissed.
Let judgment be entered accordingly.
March 16, 2012
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims