Opinion
# 2011-018-222 Claim No. 111185
06-30-2011
ELIZABETH TERRAZAS v. STATE OF NEW YORK
Synopsis
The Court finds that this unfortunate accident was not proximately caused by the absence of a traffic signal or pedestrian island but by the inattention of both Claimant and the driver of the vehicle that struck Claimant. Case information
UID: 2011-018-222 Claimant(s): ELIZABETH TERRAZAS Claimant short name: TERRAZAS Footnote (claimant name) : Defendant(s): STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 111185 Motion number(s): Cross-motion number(s): Judge: DIANE L. FITZPATRICK SHAW LAW FIRM Claimant's attorney: By: William R. Shaw, Esquire ERIC T. SCHNEIDERMAN Attorney General of the State of New York Defendant's attorney: By: Edward F. McArdle, Esquire Assistant Attorney General Third-party defendant's attorney: Signature date: June 30, 2011 City: Syracuse Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
The Claimantseeks damages for injuries she sustained as a result of being struck by a vehicle while crossing a State road in Cortland, New York on August 2, 2003. The claim alleges that the State was negligent in not providing a crosswalk or other protections at the intersection where she was struck. The claim was bifurcated and this Decision is solely on the issue of liability.
At the time of Claimant's accident she was married and using her husband's last name of Terrazas. She has since divorced and remarried and her current last name is Contento. However, she preferred the use of her maiden name, Proctor, during trial.
On August 2, 2003, Claimant was residing with her former husband at 66 Tompkins Street, State Route 13(hereinafter referred to as Route 13), Cortland, New York, and was attending Tompkins-Cortland Community College as well as working at a Wilson Farms convenience store. That morning, she went to the YMCA and was scheduled to work that evening from 6:30 p.m. until midnight. It was her nephew's birthday so she went shopping at the Dollar Store located on Owego Street, State Route 215, (hereinafter Route 215). It was a clear, sunny, summer afternoon. As she was crossing Route 13 on her way home, at approximately 2:18 p.m., she was struck by a vehicle driven by John D. Traphagen and sustained serious injuries.
Route 13 is a flat and straight roadway. It runs southwest-northeast in the area of the accident, but for simplification, the terms north and south were used during trial. The police report uses east (north) and west (south). Route 215 runs north and south and meets Route 13 at an angle. Route 13 has a driving lane in each direction and also an emergency or parking lane on each side separated from the travel lanes by a white edge line. The travel lanes are marked by solid, double yellow lines. The speed limit in this area is 30 mph.
Route 215 has two travel lanes, one in each direction. There is a stop sign and a left turn lane at the intersection with Route 13. There is a pedestrian crosswalk across Route 215. There is no crosswalk across Route 13 at this location, and this is the basis for Claimant's claim against the State.
With a few discrepancies, the Claimant and other witnesses described what happened on August 2, 2003. Claimant was returning from the Dollar Store on Route 215 when she reached the intersection with Route 13. She saw a vehicle stopped on Route 215 at the intersection. She testified she did not know which direction the driver was turning, so she wanted to cross Route 13 quickly.She said she looked both ways several times, looked down at her purchase for five-to-seven seconds, and stepped off the curb. As she proceeded across the parking lane, she saw a vehicle about one- and one-half car lengths away, to her left, heading north toward her and she quickened her pace to a fast walk or a trot. The driver, Rosanne Kawak, swerved right to avoid hitting Claimant.
This concern of Claimant's is called into question by the fact that which direction the driver is turning can be determined by which lane the vehicle is in at the intersection.
Claimant then "skidded"into the road and did not see the green sport utility vehicle (SUV) in the southbound lane until it was too late. Claimant was near the center, double yellow lines when she was hit. She did not hear a horn or brakes being applied. As a result of the accident, Claimant suffered numerous injuries, including some short-term memory loss. She was ticketed and found guilty of violating Vehicle and Traffic Law § 1152 (a).
Trial Transcript II, p. 256, l. 6.
Vehicle & Traffic Law § 1152 (a) provides: [e]very pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right of way to all vehicles upon the roadway.
Ms. Kawakrecalled seeing Claimant first on the sidewalk and then crossing Route 13 slowly. She also saw an SUV traveling in the opposite lane. Ms. Kawak recalled that she was some distance from Claimant when Claimant crossed her travel lane. Claimant may or may not have looked for traffic before she stepped into the road; Ms. Kawak testified Claimant was reading something. Ms. Kawak said Claimant hesitated at the double yellow line and then, without looking, stepped into the southbound lane where she was hit by the oncoming SUV. Ms. Kawak then pulled over to the right to avoid also hitting Claimant as she fell from the impact. Ms. Kawak said it did not look like the green SUV slowed or swerved at all.
Ms. Kawak did not testify at this trial but did testify at Claimant's trial in Cortland City Court, and her testimony was admitted as Exhibit 37.
Defendant called Robin Alexander, the driver of the vehicle stopped on Route 215 waiting to turn right onto Route 13. Ms. Alexander testified she was stopped at the stop sign for over a minute waiting for a break in the traffic. At first, she didn't notice Claimant because she was focused on the traffic, but then she saw Claimant just south of the intersection as she stepped into the parking lane. She saw the northbound Kawak vehicle avoid hitting Claimant. Ms. Alexander could not say if Claimant looked for traffic before leaving the curb but noted that Claimant moved quickly to get out of the way of the Kawak vehicle. Although Ms. Kawak did not recall swerving to avoid Claimant before she was hit, both Claimant and Ms. Alexander did, and the Court accepts their recollection having had the opportunity to see them testify.
Ms. Alexander was very familiar with the intersection and the area along Route 13 because she drove it at least once a day. When the State University of New York at Cortland (SUNY Cortland) is in session, she has seen as many as 50 pedestrians in one day crossing Route 13 near the intersection of Route 215. She said the pedestrians crossed the street at many locations on that stretch of Route 13 and not necessarily at an intersection.
Mr. Traphagen was the driver of the SUV that hit Claimant. He did not testify, but his pretrial depositionwas admitted into evidence by stipulation. Mr. Traphagen was on his way home after working 14 hours at the Cortland County Sheriff's Department. He worked the 11:00 p.m. to 7:00 a.m. shift at the county facility and then went to Hartford, New York, to fingerprint children until 2:00 p.m. There were no known mechanical problems with his green Bravado SUV and it had a valid inspection.
Exhibit 6. His testimony at the Cortland City Court trial was also in evidence as part of Exhibit 37.
Before the accident, Mr. Traphagen recalled driving south on Route 13 with a passenger vehicle in front of him which turned right into a driveway causing Mr. Traphagen to slow to five to ten mph. He could not estimate how far from the accident scene this occurred. Claimant was two- to- three feet to the left of Mr. Traphagen's travel lane when he first saw her, and she was moving at a fast walk, jog, or trot at the time. It was about two seconds before he hit her. Mr. Traphagen estimated his speed between 20 and 25 mph. He said he braked and steered right trying to avoid her. From the photographs of the pavement markings made by the police, it appears that Claimant was closer to the yellow center lines than the parking lane at the time of the accident. The dent in Mr. Traphagen's vehicle from the impact is in the middle of the driver's side of the hood.
On April 13, 1994, nine years before this accident, Michael Preston, the Cortland Public Safety Commission Superintendent wrote to the New York State Department of Transportation (hereinafter DOT), Regional Traffic Engineer, Barry Stevens, on behalf of Alderman Sam Ferro, expressing concerns about pedestrian safety at the intersection of Routes 13 and 215.Mr. Preston requested a traffic study be done to determine if a traffic signal would be appropriate. A response, dated April 21, 1994, stated that a formal investigation would be done.
See first page of Exhibit A.
See second page of Exhibit A, letter from Barry A. Stevens, Regional Traffic Engineer.
Thereafter, DOT commenced a study (hereinafter referred to as the Preston Study) to determine the need, if any, for a traffic signal. A Signal Investigation Data Sheetwas completed on March 14, 1995, describing various conditions around this intersection. A summary of some of that information appears on the Traffic Signal Warrant Check Sheet ("Check Sheet 1") dated December 3, 1996.
Exhibit 17, Exhibit A.
Exhibit 10, Exhibit A.
On May 15, 1997,Gayle Gray wrote to DOT asking how she could request a traffic light at that corner because the heavy traffic on Route 13 made it difficult, and sometimes dangerous, to enter the traffic flow from Route 215. The Preston Study was not completed at the time DOT received that letter. Pursuant to DOT policy, Ms. Gray's letter was forwarded to the Region 3 Traffic Engineering and Safety Group on May 20, 1997. Another Traffic Signal Warrant Check Sheet was completed on August 28, 1997(hereinafter Check Sheet #2 and Gray Study) as a result of the Gray letter. A reply was sent to Ms. Gray on December 17, 1997, stating that after a review and analysis of the intersection, a traffic signal was not appropriate, but DOT would keep the location under surveillance.
Exhibit 8, Exhibit A.
Exhibit 9.
Mr. Lawrence Levine is a Professional Licensed Engineer and was Claimant's expert. Mr. Levine noted that DOT reviewed the intersection's accident history between 1990 and 1996, performed traffic counts in 1996 and made onsite observations. He did not find any followup data or studies that indicated the State had monitored this intersection after 1997, as suggested in its letter to Ms. Gray.
Raymond McDougall, a retired DOT engineer, testified that the State continued to monitor the area by routine drive throughs. He opined that the author of the December 17, 1997, letter was referring to the accident surveillance system, which checks accident sites across the region, when he wrote the State would keep this roadway "under surveillance." William Logan, the State's expert, agreed. This is the same level of monitoring done for all roads in the region.
The Manual of Uniform Traffic Control Devices (MUTCD) parts 270 - 274 contains guidelines for when a traffic signal is appropriate for given intersections. Section 271.2 reads:
(a) GENERAL. Analysis of conditions at many traffic signal installations, coupled with the judgment of engineers with extensive traffic signal experience, has produced a series of warrants that outline minimum conditions under which a traffic control signal may be justified.
Exhibit 26, Exhibit F.
A warrant, as used in the MUTCD, are the minimum conditions at the intersection which, coupled with engineering judgment, could result in a determination that a traffic signal would be appropriate. A warrant involves analyzing traffic operations and other factors at the intersection in question.According to the MUTCD, "[t]he warrants should be used as guidelines."Whether a warrant is met and a traffic signal is installed, is still a matter of engineering judgment.
Exhibit 26 § 270.2 (b).
Exhibit 26 and Exhibit F, § 271.2 (e).
Part 271 of the MUTCD lists seven warrants, the criteria for each, and the data needed to determine whether a warrant is met. The warrants are:
(1) Warrant 1, minimum vehicular volume (§ 271.3).
(2) Warrant 2, interruption of continuous traffic (§ 271.4).
(3) Warrant 3, minimum pedestrian volume (§ 271.5).
(4) Warrant 4, school crossing (§ 271.6).
(5) Warrant 5, progressive movement (§ 271.7).
(6) Warrant 6, accident experience (§ 271.8).
(7) Warrant 7, combination of warrants (§ 271.9).
The first three warrants and the last warrant require an assessment of the traffic volume. The MUTCD requires a count for the eighth highest hour of traffic on both the main arteries and the side road(s). These counts are then compared to minimum vehicle volume tables for each warrant in the MUTCD. The minimum volumes vary based upon the number of travel lanes.
The hourly traffic counts for Route 13 were taken beginning at 10:00 a.m. on October 21, 1996, through 7:00 p.m. on October 23, 1996. For Route 215they were taken from 11:00 a.m. on October 21, 1996, through 11 a.m. on October 24, 1996. Traffic volumes for each hour during that period were recorded separately for northbound and southbound vehicles on Route 13 and northbound on Route 215.These were the only traffic counts taken before this accident. James Lawler, an engineer with DOT in 1995, recorded these counts on another sheet for comparison.The eighth highest hourly traffic count for each roadway was compared to the table in the MUTCD.The same counts were also used for the other warrants. Based upon DOT's analysis, none of the seven warrants were met.
Exhibit 21.
Exhibit 22.
See Exhibits 20-22 and Exhibit A.
Exhibit 11, Exhibit A.
Table 271-1, Exhibit 26 and F.
In his report, Mr. Levine stated that the State incorrectly used the traffic volume data in the signal warrant analysis, resulting in the faulty conclusion that a traffic signal at this intersection was not warranted. Mr. Levine pointed to several errors in the DOT documents. First, the Signal Investigation Data Sheetdated March 14, 1995, reflected the incorrect number of travel lanes: two northbound and two southbound travel lanes on Route 13 and only one northbound lane on Route 215. According to Mr. Levine, this was incorrect.
Exhibit 17, Exhibit A.
Mr. Levine explained that the analysis of highway capacity is significantly impacted by the number of lanes. A diagramthat accompanied the Signal Investigation Data Sheet shows four travel lanes as denoted by dashed lines instead of solid lines. Mr. McDougall testified that at some time between 1995 and 1997, Route 13 was changed from four travel lanes to two lanes and that is why the 1995 diagram of the road and the 1996 Warrant Check Sheetshow four lanes of travel. He said the change from four to two lanes of traffic was done partly for pedestrian safety.
Exhibit 19.
Exhibit 10.
What Mr. Levine surmised and the evidence bears out, is the State began the Preston Study before the number of travel lanes was changed on Route 13; specifically, the Signal Investigation Data Sheetdated March 14, 1995, and related diagrams reflect four travel lanes. Without further review, a summary of that information was transferred to the first Check Sheetin December 1996, and thereafter, to the second Check Sheet (Check Sheet #2)on August 28, 1997, used in response to the Gray inquiry, with no adjustment for the change in the number of lanes.
Exhibit 17.
Exhibit 10.
Exhibit 9.
Another error Mr. Levine also noted was that the tube (traffic volume) count dataused counts from different days. The count for Route 13was taken on October 22, 1996, while the data for Route 215 was taken on October 23, 1996. Mr. Levine opined if the same day counts were used, the traffic volume for Route 215 was higher and the warrants would have been met.
Exhibits 20, 21, and 22.
Exhibit 9.
Mr. Logan disagreed. Despite the State's error regarding the number of lanes on Route 13, he testified that the warrants still were not met.
Mr. McDougall said it was DOT policy to use a full twenty-four-hour period - for Route 13 that was October 22, and for Route 215 that was October 23. He agreed that the warrants were not met either day. Mr. Levine also pointed out that the State did not adjust the volume count for truck traffic which requires more time to enter traffic. He opined, if considered, or if other hours were used, the warrant for vehicular volume would have been met. Mr. Levine contends the State failed to use engineering judgment in evaluating the data.
In 1998, after the Preston/Gray Studies were completed, DOT estimatedthat traffic volume at this location would continue to increase, as partially acknowledged by Mr. McDougall. However, there was no monitoring for increasing traffic volumes around this intersection between 1997 and 2003. Mr. Levine noted that the MUTCD recommends that signal equipment should be considered with the future in mind and felt this was another area where the State failed to use good engineering judgment.
See Exhibit 25.
Mr. Levine also noted that despite a Minimum Pedestrian Volume Warrant, no pedestrian data was collected. Mr. Levine criticized the lack of attention given to pedestrians. He believes the lack of pedestrian counts means that DOT did not consider pedestrian traffic despite the concern raised in the Preston letter and the lack of traffic gaps noted in the Gray letter. Again, he felt this showed a failure to use engineering judgment.
Mr. Levine also suggested that the school crossing warrant (#4) should have been considered because of a nearby school, but this is insufficient to invoke this warrant. Mr. Logan pointed out that an established school crossing is required by the MUTCD before this warrant would be considered.
Exhibit 26, MUTCD § 271.6 (c).
Another error Mr. Levine pointed to was the Traffic Signal Warrant Check Sheets (Check Sheets #1 and #2), DOT used for both the 1996 Preston and 1997 Gray Studies, only reflected five warrants. The form used was created in 1969 and never changed after the MUTCD was amended in 1983, adding two additional warrants (#5, Progressive Movement; #6 Accident Experience). The information included on the 1996 Check Sheet #1, was merely copied onto the 1997 Check Sheet #2, without referencing the MUTCD modifications or DOT's projected increased traffic volumes.
Exhibit 25.
The Fifth Warrant, Progressive Movement, Mr. Logan testified, was not applicable here. Mr. Levine indicated that installing a traffic light here could be coordinated with other signals in the area and facilitate the progressive movement of traffic.
The Sixth Warrant, although not specified on the outdated Warrant Check Sheet forms used by DOT was considered as part of the "Combination of Warrants" on the forms. The Sixth Warrant, Accident Experience, has four requirements:
(1) Adequate trial of less restrictive remedies, with satisfactory observance and enforcement, has failed to reduce accident frequency; and
(2) Five or more reported accidents, of types susceptible of correction by a
traffic control signal, have occurred within a twelve month period; and
(3) Vehicular and pedestrian traffic volumes are at least eighty percent of the requirements specified either in the minimum vehicular volume warrant, the interruption of continuous traffic warrant, or the minimum pedestrian volume warrant; and
(4) The signal installation will not seriously disrupt progressive traffic flow.
The State provided an accident history for this intersection for the period of July 1990 through June 1993, as part of the Preston Study. Six accidents occurred with three personal injuries. The accident rate for these three years was .3, higher than the Statewide average. Exhibit 15 showed more detail of the six accidents. One of these involved a vehicle collision with a bicyclist. Under the MUTCD, bicycle traffic is considered pedestrian traffic for all warrants.None of the witnesses referred to that accident in their testimony. No pedestrian/vehicle accidents were noted.
Exhibit 26 and Exhibit F, § 271.2 (e).
The only supplemental information provided in the 1997 Warrant Check Sheet (Gray Study) was an updated accident history. The accident history for this intersection for the three-year period between July 1993 through June 1996, showed five accidents during this period with three injuries. The Statewide average for similar intersections is .2. Here, it was slightly higher at .25. There were no pedestrian or bicycle accidents.
Mr. Levine pointed to the higher than average accident history at this intersection for two, three-year periods, and discussed the ease with which the State could have made a center, left turn only lane or a raised pedestrian refuge area given the width of the road. Such an inexpensive undertaking would have been in keeping with the first requirement of this warrant. The failure to consider such measures at the time of the lane changes or in light of the accident history indicated to Mr. Levine that no engineering judgment was used.
Mr. Logan noted that this warrant was not met because there were not five reported accidents in twelve months that would have been corrected by a traffic signal.
The State introduced an affidavit from Diana Graser, the current Regional Traffic Engineer at DOT,indicating she reviewed DOT's records for pedestrian/bicycle accidents for a period of five years preceding Claimant's accident within 528 feet of this intersection, and found that other than Claimant's accident, there were no other pedestrian accidents and no bicycle accidents.
Exhibit H.
The Combination of Warrants, the last warrant, was reflected on the forms used by DOT and provides that if two of the first three warrants meet 80% of the required traffic volumes, a signal may be justified. Alternatives to a signal should be attempted first. The first warrant was not met using 80% of the volume although the second warrant was. Since no pedestrian volume was given and only anecdotal information was presented, it cannot be determined whether this warrant was met.
LAW
The State owes a nondelegable duty to keep its roadways in a reasonably safe condition (see Friedman v State of New York, 67 NY2d 271, 283 [1986]). This duty is not limited to just vehicular traffic but also extends to pedestrians (Sanford v State of New York, 94 AD2d 857, 859 [3d Dept 1983]). The State, however, is not an insurer of the safety of its roadways and the occurrence of an accident does not create a presumption of negligence (Tomassi v Town of Union, 46 NY2d 91, 97 [1978]). Although any roadway can be made safer, the State's duty is met when persons exercising due care can use the roadway safely (Boulos v State of New York, 82 AD2d 930, 931 [3d Dept 1981] affd 56 NY2d 714 [1982]).
To establish liability, it is Claimant's burden to show that the State either created or had actual or constructive notice of a dangerous condition and failed to remedy it before that condition proximately caused Claimant's injuries (Kuhland v City of New York, 81 AD3d 786, 788 [2d Dept 2011]; Sanford, 94 AD2d at 859; Meeker v State of New York, 17 Misc 2d 288 [Ct Cl 1959]).
In the area of highway planning and design, the State is afforded a limited or qualified immunity for its highway planning decisions (Weiss v Fote, 7 NY2d 579 [1960]). Liability may only be imposed where it is shown that the plan either evolved without an adequate study or lacked a reasonable basis (Id., at 586; Friedman, 67 NY2d at 284).
Here, Claimant strenuously argued that both the Preston and Gray Studies were wrought with so many errors that the studies were plainly inadequate, and the decision not to install a traffic signal lacked a reasonable basis. Claimant argues the State failed to even consider less restrictive options.
Claimant's expert pointed to numerous mistakes: using outdated forms to evaluate the data collected, inputting incorrect information, the absence of pedestrian counts, the inconsistency in using different day traffic counts to assess traffic volumes, the failure to adjust the traffic counts for truck traffic, and the failure to consider other remedial measures other than a traffic signal. Claimant's expert indicated that without these flaws, the warrants were met and a traffic signal or some other remedial measure was indicated. Although Defendant's expert acknowledged some of the errors Mr. Levine noted, Mr. Logan found that despite these flaws, the warrants were not met, including the two additional warrants not referenced on the outdated form. Mr. Logan testified the study and the decision not to install a traffic light at this location were based upon sound engineering judgment.
Mr. Levine's position that DOT should have found that Warrants #1 and #2 were met is based upon using the vehicle count taken on a different day and the incorrect vehicular traffic volumes based upon the incorrect number of traffic lanes. If the correct traffic volumes are referenced using the correct number of lanes, as Mr. Levine and Mr. Logan testified should have been done, those warrants are not met. The volumes needed to meet the warrants for Route 215 have a higher threshold and would not be met using the traffic count for any day. Additionally, although not on the outdated form, accident experience was considered but did not meet the warrant requirements.
The more troublesome problem is DOT's failure to do a pedestrian count. According to the MUTCD § 271.1 (a) (2), a pedestrian count should have been done, and is required for two of the warrants: Minimum Pedestrian Volume (Warrant #3) and Combination of Warrants (Warrant #7). Both Mr. Logan and Mr. McDougall indicated that when the engineer is at the site of the intersection, if few pedestrians are seen, a formal count may not be done because the minimum number of pedestrians described in the MUTCD would not be met. The Court is cognizant of the self-serving nature of this testimony, and the fact that no one with actual knowledge of the data collection for the Preston Study testified. The witnesses' anecdotal testimony of pedestrian volume at this intersection also does not establish that the warrants would have been met. The high threshold for the number of pedestrians in the MUTCD required for the warrants is significant (150 for the eighth highest hour) and Mr. Levine acknowledged that the minimum pedestrian volume was difficult to meet. Yet, without this important data, a full evaluation of the warrants could not be done. Despite no pedestrian accidents for a full six years prior to the Gray Studygiven the concerns raised in the letters, the State did not establish that the inaction at this intersection was the result of a reasoned study with a witness with actual knowledge of this study. Defendant did not meet its burden by Mr. McDougall and Mr. Logan's speculation (see Alexander v Eldred, 63 NY2d 460 [1984]; Kuhland, 81 AD3d at 787, but compare Romeo v State of New York, 273 AD2d 934 [4th Dept 2000]).
The threshold number of pedestrians was reduced to 100 in 2001 (see 17 NYCRR § 271.5 [reissued March 31, 2001, effective April 11, 2001]), and see Mr. Logan's testimony, Transcript Vol. III, p. 550.
The one bicycle accident appears to involve different circumstances than this accident - as the collision occurred with a vehicle turning right onto Route 13 from Route 215.
Even without immunity, Claimant must establish the State was negligent. Claimant argues that the State had a duty to reinvestigate the conditions at the intersection before Claimant's accident based upon the State's representation in the December 17, 1997 letter responding to Ms. Gray's concerns, and DOT's traffic projections showing increasing traffic volumes at this intersection. Claimant also alleges that the State had notice of a dangerous condition based upon the high vehicle accident rate at this intersection and pedestrian accidents in the area. However, the evidence does not support a finding that the State had notice of a dangerous condition. There were no pedestrian accidents within the five years preceding Claimant's accident within 500 feet of this intersection. There were also no other complaints or letters of inquiry regarding this intersection after Ms. Gray's May 1997 letter. The vehicle accidents at this intersection did not establish an issue of pedestrian safety. The other pedestrian accidents Claimant points to were distant from this intersection and cannot charge the State with notice of a dangerous condition at this intersection (see Friedman, 67 NY2d at 284; Trautman v State of New York, 179 AD2d 635, 636 [2d Dept 1992]; Vizzini v State of New York, 278 AD2d 562 [3d Dept 2000]). The lack of prior similar accidents is an indication that the roadway is reasonably safe for those who exercise reasonable care (Dahl v State of New York, 13 Misc 3d 590 [Ct Cl 2006] affd 45 AD3d 803; Stapleton v State of New York, 283 App Div 984 [3d Dept 1955]).
After hearing the testimony and considering all of the evidence, the Court finds that this unfortunate accident was not proximately caused by the absence of a traffic signal or pedestrian island but by the inattention of both Claimant and Mr. Traphagen. Although Claimant credibly testified that she looked both ways several times when she reached Route 13, the five to seven seconds that she looked down at her package before stepping into the parking lane was sufficient time for Ms. Kawak to get within one and one-half car lengths of her.Instead of stopping in the parking lane when she saw the Kawak vehicle, Claimant proceeded to cross the northbound travel lane causing Ms. Kawak to reactively swerve to avoid striking Claimant. Claimant's efforts to avoid the Kawak vehicle led her into the southbound lane without looking for traffic. This caused her to come into the path of Mr. Traphagen's southbound vehicle which she did not see until it was too late. Mr. Traphagen's fatigue and lack of due careresulted in his failure to see Claimant also before it was too late to avoid the collision. His negligence was also a cause of this accident.
See report of Claimant's accident reconstructionist, John Curatolo, Exhibit 28, p. 5, Time/Distance Information.
Exhibit 28, page 1.
Accordingly, based upon the foregoing, the claim is DISMISSED. LET JUDGMENT BE ENTERED ACCORDINGLY
June 30, 2011
Syracuse, New York
DIANE L. FITZPATRICK
Judge of the Court of Claims