Opinion
December 6, 1979
Appeal from a judgment, entered August 11, 1978, upon a decision of the Court of Claims. This is a claim for wrongful death, alleging negligence on the part of the State in the design, construction and maintenance of State Highway Route 9, including its guardrails. On December 5, 1973, at about 3:00 A.M., decedent's body was found in a Ford automobile in the Mohawk River just south of the Crescent Bridge and east of Route 9 in the Town of Colonie, New York. An autopsy revealed that death was caused solely by traumas related to the accident. The decedent was apparently alone in the vehicle and there were no eyewitnesses to the accident. The Court of Claims dismissed the claim on the ground that claimant had failed to demonstrate any negligence on the part of the State and further concluded that even if negligence was established, there was a failure to demonstrate that it was the proximate cause of the accident. This appeal ensued. The claimant based her claim on the improper design of the guardrail and offered expert testimony to that effect. The State, however, countered with expert testimony that the guardrails were properly designed. Considering the record in its entirety, we are of the view that the court could properly conclude there was a failure to demonstrate negligence on the part of the State. We also agree with the court that on this record there is a failure to establish proximate cause assuming negligence to be established (Murray v. State of New York, 38 N.Y.2d 782; Agius v. State of New York, 50 A.D.2d 1049). The judgment should be affirmed. Judgment affirmed, without costs. Sweeney, J.P., Staley, Jr., Main, Mikoll and Herlihy, JJ., concur.