Opinion
# 2011-044-547 Claim No. 106792 Motion No. M-79761
10-27-2011
SCHROEDER v. THE STATE OF NEW YORK
Synopsis
Court denies claimants' motion for partial summary judgment on liability issue. Case information
UID: 2011-044-547 Claimant(s): MARK SCHROEDER and JANIS SCHROEDER, his wife Claimant short name: SCHROEDER Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 106792 Motion number(s): M-79761 Cross-motion number(s): Judge: CATHERINE C. SCHAEWE Claimant's attorney: MARK LEWIS SCHULMAN, ESQ. HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL Defendant's attorney: BY: Joseph F. Romani, Assistant Attorney General Third-party defendant's attorney: Signature date: October 27, 2011 City: Binghamton Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Claimant Mark Schroeder, in his capacity as a Volunteer Ambulance Corp. member, was riding in an ambulance which collided with a stone wall (the Stone Wall) located in the right-of-way on the shoulder of State Route 17B in the Town of Delaware, Sullivan County. Claimantsfiled this claim, alleging that defendant State of New York (defendant) was negligent in its design, construction, and maintenance of Route 17B based upon, among other things, allowing a dangerous condition - the Stone Wall - to exist in or near the roadway. Defendant answered and asserted several affirmative defenses. Defendant's previous motion for summary judgment based upon qualified immunity was denied (Schroeder v State of New York, Ct Cl, Dec. 24, 2009, Schaewe, J., Claim No. 106792, Motion No. M-76693 [UID # 2009-044-573]). Claimants now move for partial summary judgment on the issue of liability. Defendant opposes the motion. Claimants reply.
Claimant Janis Schroeder's claim is derivative in nature, and unless otherwise indicated or required by context, the term "claimant" shall refer to Mark Schroeder. The Court notes that claimants and defendant have incorrectly listed claimant Janis Schroeder as Janice Schroeder and Janet Schroeder, in the captions of their respective submissions. However, she is listed as Janis Schroeder in the caption of this Decision and Order as that is how she was named in the caption of the claim.
Initially, as defendant correctly notes, claimants have failed to include a copy of the pleadings which were served in this action. Accordingly, this motion could be denied solely on that basis (see CPLR 3212 [b]; Greene v Wood, 6 AD3d 976, 977 [2004]). However, copies of the pleadings are on file with the Clerk of the Court, had been included in defendant's previous motion for summary judgment, and were belatedly submitted with claimants' reply papers (see e.g. Stiber v Cotrone, 153 AD2d 1006, 1007 [1989], lv denied 75 NY2d 703 [1990]). Thus, the record is "sufficiently complete" for the Court to overlook claimants' procedural defect and address the merits of the motion (Greene v Wood, supra; General Motors Acceptance Corp. v Albany Water Bd., 187 AD2d 894, 895 n [1992]).
Claimants argue that defendant had notice that the Stone Wall constituted a dangerous condition, based upon an accident analysis conducted by the Department of Transportation (the DOT) in 1993 (the Accident Analysis). Claimants further contend that defendant has waived the defense of qualified immunity by failing to take corrective measures as recommended by the Accident Analysis, such as installing a piece of guide rail across the opening in the Stone Wall.
Conversely, defendant asserts that there are several material issues of fact as to whether the Stone Wall constituted a dangerous condition requiring some remedial measure. Defendant argues that in any event, claimants have failed to establish how claimant's injuries were proximately caused by the alleged dangerous condition.
Defendant's contention that this motion should be denied solely because it is based upon the same evidence as set forth in defendant's previous motion for summary judgment is without merit. The previous motion was denied because defendant, as the moving party, failed to meet its burden of submitting evidence that it considered the recommendation to install a piece of guide rail, and "based upon 'a deliberative decision-making process,' chose not to take any corrective action at that time" (Schroeder v State of New York, supra at 8, quoting Appelbaum v County of Sullivan, 222 AD2d 987, 989 [1995]). Clearly, defendant's failure to meet its burden on that motion (which does not prohibit defendant from submitting such evidence at trial) does not require a finding that claimants will be unable to meet their burden on this motion, particularly given the submission of their expert's affidavit.
Claimants, as the movants on this motion for summary judgment, are required to set forth evidentiary facts in admissible form which establish a prima facie showing of entitlement to judgment as a matter of law (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Once this burden has been met, it is incumbent upon the opposing party to produce admissible evidence sufficient to create material issues of fact requiring a trial of the action (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). However, absent such a prima facie showing by the movant, the motion must be denied, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Ctr., supra).
It is well settled that the State owes to the traveling public a nondelegable duty to design, construct, and maintain its roadways in a reasonably safe condition under the circumstances (Friedman v State of New York, 67 NY2d 271, 283 [1986]). This duty includes an obligation to provide adequate and proper traffic barriers, such as guide rails (McDonald v State of New York, 307 AD2d 687 [2003]; Lattanzi v State of New York, 74 AD2d 378 [1980], affd 53 NY2d 1045 [1981]; see generally Bottalico v State of New York, 59 NY2d 302 [1983]). Nevertheless, the State is not an insurer, and the mere happening of an accident does not permit an inference of negligence (see Tomassi v Town of Union, 46 NY2d 91, 97 [1978]; Boulos v State of New York, 82 AD2d 930, 931 [1981], affd 56 NY2d 714 [1982]). Any roadway can be made safer, but the State's duty has generally been met when users of the highway exercising due care can travel over the roadway safely (Tomassi v Town of Union, supra).
In order to recover, a claimant has the burden to show that defendant was negligent and that its negligence was a proximate cause of the accident (Bernstein v City of New York, 69 NY2d 1020; 1021-1022 [1987]; Hamilton v State of New York, 277 AD2d 982 [2000], lv denied 96 NY2d 704 [2001]; Marchetto v State of New York, 179 AD2d 947 [1992], lv denied 80 NY2d 751 [1992]; Demesmin v Town of Islip, 147 AD2d 519 [1989]). To establish defendant's negligence, the claimant must show that defendant either created a dangerous condition, or had actual or constructive notice of it and failed to take reasonable measures to correct it (Brooks v New York State Thruway Auth., 73 AD2d 767 [1979], affd 51 NY2d 892 [1980]; Rinaldi v State of New York, 49 AD2d 361 [1975]). However, the State has qualified immunity from liability with respect to discretionary decisions made in the course of planning and designing a highway, such that liability cannot be imposed unless those decisions were based on a study that was plainly inadequate and/or the plan or design itself lacked a reasonable basis (Weiss v Fote, 7 NY2d 579, 589 [1960]; Friedman v State of New York, supra). This prevents the finder of fact from "second-guessing the planning decisions of governmental bodies regarding such operations as traffic control and regulation" (Deringer v Rossi, 260 AD2d 305, 306 [1999]). Therefore, as a general rule, where experts have differing opinions about whether a planning decision was proper, that difference of opinion is sufficient to establish that the decision was reasonable (Schwartz v New York State Thruway Auth., 95 AD2d 928, 929 [1983], affd 61 NY2d 955 [1984]).
In support of this motion, claimants submit a copy of the Accident Analysis prepared in 1993 by Robert A. MacMonigle, the Regional Traffic Engineer at the time. The Accident Analysis concerned the area between RM 17B 9601 1018 and RM 17B 9601 1027 for the three years between October 1, 1989 and September 30, 1992.A review of the Accident Analysis reveals that 2 of the 10 accidents which occurred in that area involved the Stone Wall (located at or near RM 17B 9601 1021).As part of the Accident Analysis, MacMonigle noted that "[i]t would be beneficial to make [the Stone Wall] as crashworthy as possible (end sections, guiderail [sic] protection, etc.). If [it] can be done within the scope of the project, it should be considered."It is apparent that the suggested corrective work was never performed.
A copy of the Accident Analysis is attached as Exhibit A to Claimants' Motion for Summary Judgment.
Apparently, both accidents consisted of property damage only.
Claimants' Motion for Summary Judgment, Exhibit A at 2.
Claimant also submitted portions of testimony taken at his examination before trial. He testified that he was in the back of the ambulance (the Box) with a patient, and he (claimant) was sitting on the floor using the benchseat as a backrest. He had his feet under the stretcher so that he could operate the ambu-bag to breathe for the patient. Claimant testified that as they were traveling on the roadway, he felt the ambulance pitching up and down - the passenger side went up and then dropped - and he heard scraping and crunching sounds. Then he felt a violent impact and was thrown against the front storage compartments, ultimately landing in the stairwell. He noted that the collision ripped up the brackets which held the bench to the floor of the Box.
Claimants also provided the expert affidavit of Glenn L. Smith, a professional engineer. Smith allegedly reviewed documents and photographs provided by claimants, which presumably included the Accident Analysis.He also inspected the accident site to obtain measurements and take photographs. He indicates that the roadway immediately adjacent to the Stone Wall is approximately 21 feet wide between the white fog lines, with the westbound lane (that being closest to the Stone Wall) being 10 feet wide. Smith states that the Stone Wall is parallel to the roadway for approximately 110 feet with the distance between it and the fog line varying from 18 inches at the westerly end to 24 inches at the easterly end. Based upon Smith's photographs and measurements, there is an opening in the Stone Wall approximately 4 feet wide which contains a set of concrete stairs (leading up the incline and away from the highway) that includes 10-inch concrete sidewalls. Smith indicates that the westerly concrete step sidewall was scarred and chipped, apparently caused by previous vehicle and/or snowplow impacts. He also notes that the edge of the pavement is approximately 16 inches to 18 inches away from the face of the wall at the location of the steps. The Stone Wall is located on the inside curve of a winding and relatively narrow highway and because passing vehicles come within 12 inches of it, Smith opines that the Stone Wall is an obvious traffic safety hazard.
The Court notes that neither Smith nor claimants have set forth the actual documents reviewed and relied upon by Smith in forming his expert opinion.
Smith states that it "is reported that the ambulance box vertical corner, which extends slightly beyond the passenger side door, impacted the vertical corner of the steps 4 [foot] wide opening. The structure at that point consists of a 10 [inch] high poured concrete step sidewall at grade with drylaid fieldstones above."Smith opines that the vertical corner of the ambulance body impacting the vertical corner of the concrete step actually caused more damage than a sideswipe impact would have caused. He notes that this opinion contradicts the DOT's assertions that the proximity of the Stone Wall actually decreased the accident severity by creating a shallow angle of impact. Smith opines that if a short piece of guide rail had been installed across the opening in the Stone Wall as suggested in the Accident Analysis, the severity of the ambulance impact and resulting injuries to claimant would have been reduced as the ambulance would have been deflected away from both the opening and the Stone Wall.
Affidavit of Glenn L. Smith, P.E., sworn to March 10, 2011 (Claimant's Motion for Summary Judgment, Exhibit F), ¶ 6.
Notably, Smith does not indicate the source from which he gleaned the location of the accident (the opening in the Stone Wall) nor does he set forth any measurements of the ambulance which would support an inference that the Box could have hit the 10-inch concrete sidewall located approximately 16 inches to 18 inches away from the pavement. Moreover, claimants have not submitted any medical evidence that claimant suffered a serious injury pursuant to Insurance Law § 5102 (d), or that such injury was proximately caused by defendant's alleged negligence (see Autiello v Cummins, 66 AD3d 1072 [2009]). Claimants have failed to establish their entitlement to judgment as a matter of law (see Alvarez v Prospect Hosp., supra). Accordingly, claimants' motion for summary judgment is denied.
Even if claimants had met their burden, this motion would still be denied, as questions of fact concerning defendant's alleged negligence exist. Defendant provides the deposition testimony of Robert Edington, who was driving the ambulance at the time of the accident. Edington testified that he was traveling westbound on Route 17B at approximately 30 miles per hour as he approached the site of the accident. He indicated that there was a fog (decreasing visibility to approximately 50 feet) and he was temporarily blinded by the headlights of two vehicles traveling eastbound in the opposite lane. As the vehicles approached, the ambulance drifted slightly to the right and the passenger side mirror scraped the Stone Wall and shattered. Edington stated that within a few seconds, the Box also hit the Stone Wall.
Defendant also submits the expert affidavit of Daniel Paddick, a professional engineer with 40 years of experience who was formerly employed by the DOT. Paddick reviewed numerous documents provided during discovery of this claim, including various deposition transcripts, as well as photographs of the ambulance. He also inspected the accident site and took additional photographs of the Stone Wall. Paddick states that because there was "not a lot of crush on the hub cap, step, mirror or vehicle box of the ambulance,"the damage was consistent with the vehicle sliding along or hitting the wall, possibly at the stairway opening, and was indicative of a low-energy crash. Further, Paddick notes that the concrete stairs at the opening in the Stone Wall are "recessed well beyond the distance needed to cause the damage to the ambulance box [and] [i]t is doubtful that the concrete steps were hit."He admits that the Accident Analysis suggested making the Stone Wall more crashworthy if it could be done within the scope of that indicated project. However, Paddick indicates that the project at the time the Accident Analysis was conducted was limited to the replacement of highway culverts before they structurally failed.He notes that because the funds within the capital program for such culvert work were limited, the DOT made the determination that the Stone Wall was outside of the scope of the project. Paddick further states that the Stone Wall was also studied extensively as part of a later project to repair guide rail in that area of the highway. During the course of the later project, guide rail located across the roadway from the Stone Wall was replaced, but no work was performed on the wall itself.
Affidavit of Daniel Paddick, P.E., sworn to June 14, 2011 (Affirmation of Assistant Attorney General [AAG] Joseph F. Romani, dated June 15, 2011, in Opposition to Motion, Exhibit 1), ¶ 5
Id., ¶ 6
Paddick refers to an October 20, 1994 PS&E Submission Memo (the Memo) which apparently states that "the non standard features have been addressed and '[a]n accident analysis has been conducted [which] showed no countermeasures are necessary' " (Affidavit of Daniel Paddick, sworn to June 14, 2011, in Opposition of Motion, ¶ 7). The Court notes that while the Memo may support defendant's affirmative defense that it has qualified immunity from liability with respect to discretionary decisions made in the course of planning and designing a highway, defendant has not submitted a copy with the opposition papers to this motion, the papers submitted in the prior motion, nor has defendant disclosed a copy of the Memo as part of its documentary discovery responses on file with the Court.
Paddick also explains that a guide rail functions as part of a system which depends on proper anchoring, and that such a system absorbs energy from a moving vehicle and directs the vehicle away from the hazard being protected by the guide rail. Paddick states that an open space is generally required behind the guide rail in order for the guide rail to deflect after the impact. He further notes that the State does not have an approved method of retrofitting a guide rail system to an existing stone wall and that questions exist as to whether the Stone Wall was structurally sufficient to have supported such a guide rail system. Accordingly, and contrary to Smith's opinion that a piece of guide rail could have been installed to cover the opening in the Stone Wall, Paddick opines that such an installation might not have been an appropriate remedy. Paddick states that the collision between the ambulance and the Stone Wall was a low-energy, low-angle impact. Paddick opines that the results of this collision were essentially equivalent to what would have been experienced in a collision between the ambulance and a guide rail. He further indicates that because it was impossible for a vehicle traveling in the proper direction on the roadway to experience a high-angle impact collision with the Stone Wall, the Stone Wall was sufficiently crashworthy.
As Paddick correctly notes, there is no evidence concerning the exact location of the collision, and there are questions of fact as to whether the Box collided with the concrete sidewall of the concrete steps or some other portion of the Stone Wall. Moreover, Paddick's expert opinion - that neither defendant's decision to allow the Stone Wall to remain in its current location and/or condition nor its failure to install a piece of guide rail over the opening was negligent - also creates a question of fact rendering summary judgment inappropriate.
In conclusion, claimants have failed to meet their burden of establishing entitlement to judgment as a matter of law, regardless of the sufficiency of the opposing papers. In any event, the evidence submitted in response to this motion raises material questions of fact concerning defendant's alleged negligence. Accordingly, claimants' motion for summary judgment is denied in its entirety.
October 27, 2011
Binghamton, New York
CATHERINE C. SCHAEWE
Judge of the Court of Claims
The following papers were read on claimants' motion:
1) Notice of Motion filed on April 21, 2011; Affirmation of Mark Lewis Schulman, Esq., dated April 18, 2011, and attached exhibits.
2) Affirmation in Opposition of Joseph F. Romani, AAG, dated June 15, 2011, and attached exhibits; Memorandum of Law dated June 15, 2011.
3) Sur-Reply Affirmation of Mark Lewis Schulman, Esq., dated August 9, 2011; Affidavit of Glenn L. Smith, P.E., sworn to on August 9, 2011, and attached exhibits.
Filed papers: Claim filed on October 15, 2002; Verified Answer filed on November 25, 2002.