Wadsworth v State of New York

[*1] Wadsworth v State of New York 2005 NY Slip Op 50772(U) Decided on March 17, 2005 Court Of Claims Fitzpatrick, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 17, 2005
Court of Claims

Brian S. Wadsworth and Sharon Wadsworth, Claimants,

against

State of New York

[FN1], Defendant.

103394



For Claimants:

Getnick Livingston Atkinson Gigliotti & Priore, LLP

By: Mark P. Malak, Esquire

For Defendant:

Eliot Spitzer

Attorney General of the State of New York

By: G. Lawrence Dillon, Esquire

Assistant Attorney General

Diane L. Fitzpatrick, J.

Claimant [FN2] brings this claim for injuries he sustained when his milk-delivery truck vaulted over a railing on a bridge overpass which connects Griffiss Park [FN3] to Route 49 in the City of Rome on September 27, 1999. He alleges the accident occurred as a result of the State's negligence in its construction, design, and maintenance of the bridge. The case was bifurcated and this decision addresses only the issue of liability.

On September 27, 1999, Claimant arose at approximately 1:15 a.m., and by 2:00 a.m., was at the Mohawk Valley Dairy loading his milk-delivery truck for his daily deliveries. The [*2]truck was approximately 30 to 35 feet long with a square hood on the cab approximately 6 feet deep. The truck was old and had only a lap seatbelt. Claimant testified that his load was not full that day, so his route was modified. He began his deliveries around 2:30 a.m. Approximately 12 hours later, at 2:30 p.m., after completing his next to last delivery at Rome Nutrition, Claimant was heading south out of Griffiss Park toward a bridge overpass. This overpass spans over Route 49 and connects Griffiss Park with Route 49. This was not Claimant's usual route. He testified that he had never traveled over this bridge overpass before, although he had exited Griffiss Park at this location, but instead of going over the overpass, he would exit onto East Dominick Street and head toward Rome. From the Griffiss Park gate, the road sloped downward and Claimant could see the bridge. Claimant said there was no "narrow bridge" warning sign. He recalled that the roadway had normal markings: a white edge or fog [FN4] line; a yellow center line, and there was one lane for vehicle travel in each direction. Claimant testified that it was his normal practice to follow the white edge line as he drove, and he recalled that he was doing so at the time of the accident. Claimant said he was driving normally although he could not recall any specifics such as whether there was other traffic or if he checked his mirrors. He approximated his speed to be about 35 mph. Claimant testified that as he drove onto the overpass, following the white edge line, he felt his truck hit something, and he was thrown from his seat onto the floor of the truck cab, on his back, with his head toward the passenger seat. Claimant was then unable to see what occurred next, but he felt the truck hit something again. He then recalled an unnerving silence before the truck hit the roadway below, coming to rest on the northern embankment on the side of the eastbound lane of Route 49. Claimant was thrown from the vehicle, recalling being on all fours in the dirt. Claimant remembered walking on the roadway until a woman in another vehicle called to him, and he went and sat in her car until the rescue personnel arrived to help. Claimant was taken to the hospital for treatment.

Officer Shawn Platt [FN5] investigated the accident. Based on his investigation, he determined that Claimant was driving his milk truck in the southbound lane toward the bridge overpass when the vehicle struck a low-lying guardrail on the west side of the northern end of the bridge overpass. The truck then crossed the southbound and northbound lanes and struck another low-lying guardrail on the east side of the bridge overpass. Claimant's milk truck then became airborne, striking the bridge railing and going over that railing, to fall 40 feet onto the eastbound lane of Route 49 below. From the pictures in evidence, the vehicle came to rest on the driver side on an earthen embankment on the side of the roadway.[FN6] Another vehicle was also damaged by the falling debris from Claimant's truck.

As part of Officer Platt's investigation, he went to the hospital and spoke with Claimant approximately one hour and twenty minutes after the accident. Officer Platt handwrote a "supporting deposition" based upon his interviews with Claimant. Claimant never signed the [*3]statement. The State offered the unsigned deposition into evidence but it was not received. Claimant testified he had been given morphine at the hospital, and he had no recollection of speaking with Officer Platt on the day of the accident.

Claimant called several Department of Transportation (hereinafter DOT) personnel to testify about work done on the bridge during the summer of 1999. These same witnesses later testified on behalf of the State.

According to Gary Stukey, a DOT structural engineer for a six-county area, the bridge overpass, over Route 49, was placed in a Capital Program for replacement in the early 1990's because the bridge was reaching its "life cycle."[FN7] In 1998, during a regular bridge inspection, this bridge was flagged for immediate structural attention because the exterior support beams were showing significant deterioration. As a result, until the bridge could be replaced, the most economical resolution was employed, and traffic was restricted to one lane controlled by directional traffic signals. The single lane demarcation was accomplished using barrels or aluminum or plastic tubing delineators.

After the Woodstock Festival was scheduled to be held at Griffiss Park, concern was raised that the single lane of traffic over this bridge would cause problematic traffic congestion. As a result, it was determined at the main DOT office that some limited work be done on the bridge to permit two lanes of traffic before the Woodstock Festival. Christopher Neilly, acting regional construction engineer for the Utica District in 1999, helped implement the repair work which was completed by an emergency contract. The steel beams under the bridge were "shored up," however, the outside girders could not be repaired so a solid delineation needed to be established to keep traffic off the edges of the bridge. A solid delineation was needed, as opposed to the temporary delineators used previously, to reduce the bridge to one-lane of travel because of the volume of traffic expected for this festival and concern that temporary lane delineators could be moved. The options for permanent delineation were restricted by the condition of the bridge: concrete jersey barriers were too heavy, and nothing could be drilled into the bridge because of concerns that the steel beams would be further compromised. As a result, timber curbing was selected.

The engineer-in-charge of this emergency contract [FN8] was Stephen DeRosa. Mr. DeRosa testified that the work on the top of the bridge was completed in accordance with specifications provided by a standard sheet for timber median barriers.[FN9] This standard sheet sets forth the dimensions and specifications for the timber barrier and placement and mounting of aluminum or rigid plastic tubing delineators. Mr. DeRosa also identified a drawing, made by a DOT inspector,[FN10] which was based on the standard sheet and specified the intended placement of the [*4]timber median for this bridge project. The drawing shows the intended location of the timber barrier, beginning before the bridge at the paved shoulder of the road and then tapering at a 90º angle. The standard sheet shows placement of "20 mm" tubular delineators on top of the timber barrier.[FN11] The tubing holds the reflective delineators up off the timber barriers. On the day of Claimant's accident, the type of delineators depicted on the standard sheet were not in place. Instead, flush-mounted reflective delineators were placed directly at the level of the timber barriers. The delineators used were also white, the same color as the painted timber barrier.

On this project, Joe Lomonico was the on-site inspector charged with monitoring the project on a daily basis. If the contractor failed to comply with the job specifications, it was up to Mr. Lomonico to resolve the problem in the field or report it to Mr. DeRosa. In Mr. DeRosa's opinion, the project was completed per the specifications despite changes made in how the delineators were mounted on the timber, because the standard sheet [FN12] permits engineer discretion in how the delineators are mounted. He said it was his decision to attach the reflective delineators directly on the timber because, in his opinion, the pole-mounted delineators could be easily removed by the festival attendees and used as potential weapons. Mr. DeRosa never expressed this concern to anyone while working on the project, nor was it documented anywhere.

Mr. DeRosa was asked about the edge lines leading onto the bridge. From the pictures in evidence,[FN13] based upon the direction Claimant was traveling in the southbound lane, the white edge line divided into two lines before reaching the bridge. The result was almost a "y" with the original edge line continuing on the right, leading directly into the timber barrier at the tapered angle and then continuing behind it. The new edge line was painted to the left of the original and in front of the timber barrier. The new edge line in the southbound lane was necessary because the timber barrier extended out into the original lane of travel and made the southbound lane narrower than the northbound lane. In the northbound lane, the original edge line was visible because the barrier was placed behind it. According to Mr. DeRosa, there should not be conflicting edge lines on a roadway because it could cause confusion, but he could not explain why the old southbound edge line was not concealed or removed. He did not believe that the two edge lines here were conflicting. The edge lines in the southbound lane were repainted during the project to help direct traffic to the reduced travel lane around the timber barriers. The edge lines were not addressed in the project plans. Mr. DeRosa also offered no explanation as to why the travel lane for southbound traffic had been made narrower.

Mr. DeRosa testified that he was unaware of the approach speed for the bridge, and he did not assess what impact the approach speed would have on traffic conditions relative to the project, nor did he evaluate how the design of the project would affect traffic conditions.

The tapering of each of the four barrier ends, that is the angled portion of the timber barrier on each corner before the bridge (northeast, southeast, northwest and southwest [*5]quadrants), was initially supposed to be a 1:15 foot slope. On the drawing, Exhibit 11, each quadrant reflected a base length of 90 feet plus certain additional feet (i.e., the northwest quadrant where Claimant initially impacted the barrier reflected 90 + 15' = 105'; northeast quadrant 90 + 30' = 120'); however, the as-built tapers differed. When asked about this discrepancy, Mr. DeRosa explained that the shoulder of each quadrant of the bridge was different, thereby requiring some modification in the original design. He did not know if the length of the tapers as built were as estimated; he testified that was the responsibility of Mr. Lomonico.

Mr. Lomonico, the field inspector for this project, also testified for both parties. His daily reports were admitted into evidence [FN14] and indicate that work started on June 4, 1999, and that his inspection work was completed on July 2, 1999. The timber barrier was installed from June 21, 1999, through July 1, 1999. The barrier was painted white and then a silver W-beam was affixed to the outside of the timber. Mr. Lomonico testified that the project was completed pursuant to the standard sheets, and there were no changes from the plans that he had to address in the field or discuss with Mr. DeRosa.

Paul Obernesser, a DOT traffic engineer, testified that in December 1999, (several months after Claimant's accident) he was driving north over the bridge (in the opposite direction of Claimant) and noted that there was no "narrow bridge" sign. He sent a memo to Mr. G. W. Stukey,[FN15] Regional Structures Engineer with DOT, on December 27, 1999, recommending that a "narrow bridge" sign be placed at this location and that the speed limit be reduced to 30 mph. This memo refers to "signs" [emphasis supplied] in the plural. It was Claimant's position that the reference to signs was consistent with Claimant's testimony that there was no "narrow bridge" sign for southbound traffic approaching this bridge overpass on the day of his accident.

On the State's direct case, Mr. Obernesser testified that the night before his trial testimony he went to the bridge and noted the placement of a "narrow bridge" sign for southbound drivers. On the back of the sign was a sticker reflecting that the sign was installed on July 17, 1999 (before Claimant's accident). Claimant objected to this testimony because the sticker (or photographs of it) had not been provided in response to discovery demands. Mr. Obernesser's testimony on this issue has been considered by the Court, based upon the fact that this testimony is merely duplicative of information provided to Claimant during discovery. Claimant deposed Joseph C. Camastra, the DOT sign-crew supervisor, and a document [FN16] that indicated Mr. Camastra had placed two "narrow bridge" signs on July 17, 1999, near this bridge overpass was provided to Claimant during discovery.

Mr. Obernesser testified that it was the usual practice of DOT to place a sticker on the back of a sign when it was installed. The sticker on the back of the southbound "narrow bridge" sign was the standard sticker used by DOT. Mr. Obernesser testified that his December 27, 1999 memo, recommending placement of a "narrow bridge" sign, related only to the northbound [*6]bridge approach, not the direction Claimant was traveling.

Mr. Camastra, the sign-crew supervisor, was also called as a witness at trial. He testified that when he received Mr. Obernesser's December 27, 1999 memo, he went to the bridge to place the signs, but the signs were already installed. Mr. Camastra thought that the contractor had installed them, and he made a note to that effect on Mr. Obernesser's memo.

Claimant vigorously disputed the existence of the southbound "narrow bridge" sign at the time of his accident. He pointed to several photographs in evidence to show that no sign was in place. The Court has reviewed the photographs in evidence. The majority of the photographs taken from the same direction Claimant was traveling are taken further south, beyond where the sign was placed.[FN17] From Exhibit A-29, taken the day of the accident from the opposite direction, the back of a diamond shaped sign is visible, not inconsistent with the shape and placement of the "narrow bridge" sign identified in Exhibit 15 and evident in Exhibits 8 and 9. The Court agrees with Claimant that the back of the sign cannot be identified in Exhibit 13, a photograph also taken on the day of the accident; however, the Court attributes this to the location where the picture was taken, causing the back of the "narrow bridge" sign to blend in with the back of two other signs in the same area. The Court accepts the testimony of Mr. Camastra and Mr. Obernesser and finds that the southbound "narrow bridge" sign was in place on the day of Claimant's accident although the Court also accepts that Claimant did not see the sign that day.

Mr. Camastra also testified that he placed orange candlestick-type delineators on the timber barrier in January 2000. He testified he did so at that time to assist snowplow drivers in seeing the timber barrier. No reason was given for why these delineators could not be used when the timber barrier was originally constructed.

Both parties called expert witnesses. John Serth, Jr., a transportation and civil engineer formerly employed by DOT, now doing private consulting, testified for Claimant. He visited the accident site and was familiar with the documentation related to the project. Mr. Serth opined that a combination of factors substantially caused Claimant's accident.[FN18] In the southbound lane only, the timber barrier was installed approximately two feet into the lane of travel; the pre-existing white edge line was not removed or concealed and led directly into the timber barrier where it was tapered; the reflective delineators used were too low and difficult to see for drivers sitting in vehicles higher up off the road with a longer hood - like a truck; and the height of the barrier was inadequate to prevent vaulting given its placement so close to the bridge railing.

In Mr. Serth's opinion, although the timber barrier, as installed, substantially complied with the standard sheet (Exhibit 10) for timber median barriers, this was not the correct standard sheet for a barrier located on a bridge or for a barrier which Mr. Serth felt was permanent not temporary. The New York State Department of Transportation Highway Design Manual § 10.4.2, entitled "Timber Curb and Median Barriers" indicates timber curbing should only be used for a temporary situation at speeds of less than 70 km/h (~44 mph). No studies were done to [*7]determine the average speed of vehicles traveling over this bridge [FN19] and since this barrier was still in place as of the date of trial, four and one-half years after Claimant's accident, in Mr. Serth's opinion, it was permanent.

According to Mr. Serth, Claimant's truck hit the barrier on the western side at the angled or tapered portion and was redirected across both lanes where it struck the eastern side wooden barrier. The redirection was what the barrier was intended to do. Claimant's expert believed, the truck, because of its width, struck the eastern barrier at a shallow angle. Despite the shallow angle, the truck vaulted over the bridge rail. Vaulting is a known hazard relative to bridge rails and is discussed in the New York State Department of Transportation Roadside Design Manual.[FN20] According to that manual, § 10.2.2.4(B), mountable curbing on medium speed roadways [FN21] should not be placed in front of bridge rails or guiderails between 1 and 10 feet because of the known risk that if a vehicle strikes the barrier or curbing, the vehicle will continue to go up and over the bridge railing.[FN22]

Based upon his knowledge, as a DOT engineer, Mr. Serth testified that on a bridge where a barrier may have to be closer to a railing, a barrier should be at least 24 inches (600 mm) high in order to deflect a vehicle and prevent vaulting. Mr. Serth measured the eastern timber barrier and found it was 1.4 feet (426 mm) and only 7 feet way from the bridge railing. He testified that if the barrier had been higher given the shallow angle at which the truck hit the barrier at the point of the second impact, it would have also deflected the truck preventing the vaulting.

Another concern was the tapering lengths of the wooden barrier and how that affected the placement of the barrier in relation to the travel lanes. Mr. Serth's measurements showed that the lanes were of different widths. Mr. Serth testified that the two combined lanes were to be 24 feet total. This is consistent with the drawing made by the DOT inspector for the project (Exhibit 10) and the Daily Inspection Reports (Exhibit Q-12), and with Mr. DeRosa's testimony that two lanes of the same width is the protocol. To his knowledge, there was no reference in the plans or the standard sheets for this project to have one lane wider than the other. As built, however, Mr. Serth found that the southbound lane was 10.7' wide, and the northbound lane was 12.5' wide. Mr. Serth said the west side barrier protruded into the southbound lane [FN23] and there were two edge [*8]lines for the lane as well. Heading northbound, there is one edge line and the barrier is kept behind the edge line; it does not protrude into the travel lane. No documentation or reference is made to the difference in lane widths. Mr. Serth also noted that from the direction Claimant was traveling for that quadrant of the bridge, the taper was shorter than what the plans called for - it was 92 feet instead of 105 feet. The taper, therefore, was steeper than what the plans show. There was no explanation for this difference in the documents. Based upon the original plans, the barrier should not have been 8½ feet away from the west rail, it should have been only 6 feet away. This, according to Mr. Serth, had the effect of moving the barrier 2½ feet into the lane. He opined that if the taper had complied with the plans, Claimant would not have hit the western barrier.

Mr. Serth, in evaluating this case, did not determine the speed Claimant was traveling. He testified that although the speed limit in Griffiss Park was 30 mph, that limit would not continue onto the bridge which he felt was unposted; so the 55 mph State speed limit would apply.

Mr. Serth acknowledged on cross-examination that he had reached his conclusions regarding the need for a higher barrier, not based on any crash test data, but on his experience with DOT. He also acknowledged that he excluded mechanical failure, based upon the police report, in reaching his conclusion as to what factors caused this accident. He also admitted that the accident was partially caused by the human error of Claimant in failing to recognize and address a travel lane obstruction.

The State's expert, James E. Bryden, is also a civil engineer who worked for DOT for 36 years and now has a consulting business. He reviewed the relevant documents and visited the scene a few times.

While at DOT, Mr. Bryden supervised crash studies for construction zone barriers.[FN24] These studies were conducted with passenger cars. Trucks were outside the regular design parameters; therefore, the studies and findings do not apply to trucks.

In approaching this case, Mr. Bryden testified he looked to several factors to determine whether any were contributing causes to the accident. Specifically, he looked at environmental factors, whether the object struck was readily visible and apparent based on highway design factors, or whether mechanical failure or human error was involved. At the scene, Mr. Bryden determined the location of Claimant's initial impact from the police photographs. He noted a clearly defined tire scuff made by the right front tire from the point of initial impact across the roadway from west to east. He called this mark a critical speed scuff or skid.[FN25] He then located the impact point on the east side of the bridge, first on the W-beam barrier and then on the bridge rail. The witness took various measurements so he could estimate the vehicle's speed from the first to second impact points and to estimate the two impact angles. This was to determine if the barrier performed as intended; that is, to redirect the vehicle, although a truck is outside the [*9]design parameters of normal traffic barriers. In other words, the design for these type of barriers were made and tested using passenger cars. However, in less severe impact conditions, Mr. Bryden felt it would be expected that a truck would also be redirected.

Mr. Bryden began by assessing whether any environmental factors were involved in causing this accident, and he found that there were no adverse environmental conditions that explained the initial impact or the vehicle's reaction. He next looked at the visibility of the barrier. He assessed various highway design components, signing, roadway markings, and visibility of the barrier itself. He noted warning signs were posted approximately 325 feet north of the first impact. The size and placement of the signs were in accordance with the Manual of Uniform Traffic Control Devices (hereinafter referred to as MUTCD). Although the signs were in place, Mr. Bryden felt that here the "narrow bridge" sign was unnecessary because the entire bridge was readily apparent with unobstructed sight distance.

Turning to roadway marking, Mr. Bryden noted that the edge line on the west side of the bridge tapered and continued in front of the barrier. In his opinion, the edge line was visible to a driver, as was the double yellow center line which showed the path across the bridge. The barrier structure is painted white to contrast with the asphalt. The W-beam attached to the outside is silver gray and also contrasts with the pavement. In Mr. Bryden's opinion the timber barrier was readily visible for several hundred feet.

Although the low-level reflective delineators installed on this timber barrier were not the

post-mounted delineators specified on the standard sheet, Mr. Bryden did not feel that this was a cause of the accident. Mr. Bryden testified that the post-mounted delineators were primarily used for night visibility and can be spaced as much as 200 feet apart pursuant to the MUTCD, which would have indicated, based upon the length of the bridge, that one delineator be placed on each end of the bridge.[FN26] The low-level delineators actually used were placed closer together so there were several mounted on the barrier, and Mr. Bryden opined that drivers utilize contrast marking at pavement level for their lane placement. Based on all of these factors, he found that everything necessary for a daytime driver to see the timber barrier was in place and no highway design factor was a cause of the accident.

Mr. Bryden also ruled out mechanical failure based upon the police reports which provided there were no findings of any mechanical failure. Human error, that is driver action or inaction, was the final factor Mr. Bryden analyzed. It was Bryden's opinion, based upon the photographs, that driver inaction was a factor. Angle, vehicle size, and speed all act in conjunction when one is determining the angle of impact. Mr. Bryden testified that Claimant failed to steer away from the barrier, and the first impact was at a flat angle, about 4.5 degrees. This is consistent with the level of damage to the barrier. Speed was not significant related to the first impact. He estimated that Claimant left the initial impact just under 47 mph, a few miles per hour slower than when he hit the barrier. Mr. Bryden calculated this speed from first impact to [*10]second impact by using the geometry of the critical speed scuff.[FN27]

It was Mr. Bryden's opinion that Claimant was traveling along the original edge line and failed to move left upon reaching the barrier. Mr. Bryden opined that such a failure could result from things like distraction or drowsiness of the driver. He concluded that it was most likely drowsiness of Claimant that caused the failure.

After hitting the barrier, the vehicle turned sharply left. This is not consistent with the performance of cars used in crash tests. In crash tests, when a car hits these type barriers at a flat angle with no involvement of the steering column, the barrier redirects the car at a flat angle; the car stays close to the barrier. Although Claimant was driving a truck not a car, Mr. Bryden felt it should have reacted similarly. Because Claimant's truck did not react as expected, Mr. Bryden concluded that there was steering input to the left. Claimant said he was thrown from the seat with his hand still on the steering wheel, and Mr. Bryden felt this could explain the left turn: that when Claimant fell from his seat he turned the wheel to the left. It was also Mr. Bryden's conclusion that the seatbelt was not used appropriately, resulting in Claimant falling out of the driver seat, which fall contributed to the accident. At the point of initial impact, the barrier performed as it was designed and redirected the vehicle at a flat angle. If Claimant had done nothing, the truck, according to Mr. Bryden, would have stayed close to the barrier.

Mr. Bryden testified that the design parameters of this barrier are a 15º impact angle, at a speed of 40 mph, with a 4,500 lb car. The Claimant's speed and vehicle size, as well as the impact angle, at the point of second impact exceeded the design limits. The second impact point on the east barrier indicates Claimant's vehicle struck it at a steeper angle, approximately 23 degrees, was traveling at 47 mph and weighed significantly more than the barrier was designed to handle. The total impact energy generated by the weight, angle, and speed involved in this accident exceeded the design parameters of this barrier by a factor of 13. Mr. Bryden testified that no barrier could handle an impact 13 times it design parameters.

The State's expert helped in the original design-testing of the 16-inch timber barriers as used on this bridge and was familiar with the infield performance of that timber barrier as well as the 24-inch barrier referred to by Claimant's expert. As head of the construction and work zone safety program at DOT, Mr. Bryden was also made aware of any accidents which involved traffic barriers. Both of these timber barriers, the 16-inch and the 24-inch, are intended for use on a temporary basis when a lightweight barrier system is needed. The 16-inch system with the W-beam affixed is pinned to the pavement to provide stability and to redirect a vehicle tire at impacts of between 40 to 50 mph. The corrugation of the W-beam traps the tire and prevents the car from climbing upward. The 24-inch barrier is bolted to a bridge deck. There is no W-beam attached, which is why greater height is required. Both beams are designed for the same performance level: a 40 mph impact at a 15º angle with a 4,500 lb car, according to Mr. Bryden. Mr. Bryden testified that the 24-inch barrier was contraindicated in this situation because it cannot be bolted through prestressed beams, such as those on this bridge, as it would cause structural failure. The 24-inch barrier is also more expensive and unnecessary here, according to Mr. Bryden. In Mr. Bryden's opinion, the 24-inch barrier would also have failed given the speed, [*11]angle, and weight of the Claimant's vehicle at the point of second impact.

On cross-examination when questioned about the narrower width of the southbound lane, Mr. Bryden testified that the wood barrier did not intrude into the southbound lane of traffic because the traffic lane is to the left of the white edge line, which in this case was freshly painted in front of the wooden barrier. He did not find that the presence of two edge lines to be an issue which, for practical purposes, he felt was acceptable although he acknowledged it was not sound engineering practice to design a roadway with two edge lines with one leading into a barrier. The witness agreed that at the point of initial impact, Claimant's right front tire was to the right of the newly painted edge line and on the original edge line. In Mr. Bryden's crash test report,[FN28] he acknowledged that the testing was done for temporary barriers set up in work zones.[FN29] The bridge at the time of the accident was not a work zone, although it may have been a traffic control zone.

When questioned about his testimony regarding the reflective delineators, on the wood barrier at the time of Claimant's accident, Mr. Bryden clarified his position that the delineators used were superior to those on the standard sheet and prescribed in MUTCD. However, he agreed, after reviewing Claimant's Exhibit 9, that the orange tubular markers installed after the accident are more readily visible during the day than the original delineators.

The State also called Neil Palmer, an engineer with DOT who analyzes accident data. He checked the accident records, starting from the date of the accident and looking back three years, and found that this was the only vaulting accident in the area. This wooden barrier, however, had only been in place less than three months at the time of Claimant's accident.

Legal Analysis

Claimant alleges negligent construction, design, and maintenance of the bridge overpass as the cause of his accident and resulting injuries. To succeed in his claim, he must prove by a preponderance of the evidence that the State was negligent and that its negligence was a substantial factor in causing Claimant's accident and injuries (Amisano v State of New York, 48 AD2d, 982, lv denied 37 NY2d 710). To accomplish this, Claimant has the burden to prove that the State either created a dangerous condition or had actual or constructive notice thereof and failed to take reasonable measures to correct or warn of the condition (Brooks v New York State Thruway Auth., 73 AD2d 767, affd 51 NY2d 892). Here, Claimant contends the State created the dangerous condition, and therefore, notice is not required (Matter of Rouse v State of New York, 97 AD2d 962).

Undisputedly, the State bears the nondelegable duty to those using its roadways to exercise reasonable care in designing, constructing, and maintaining its roads (Friedman v State of New York, 67 NY2d 271). The State, however, is not an insurer and the mere occurrence of an [*12]accident on a State roadway does not infer liability absent proof that the State breached its duty of care (Tomassi v Town of Union, 46 NY2d 91, 97; Brooks v New York State Thruway Auth., 73 AD2d at 768). The State has fulfilled its duty to the traveling public when a highway is reasonably safe for those who obey the rules of the road, although undoubtedly, any road could be made safer (Tomassi, 46 NY2d at 97).

Where the alleged negligence arises out of a highway planning decision requiring expert judgment or the exercise of discretion, the State is entitled to a qualified immunity from liability unless the proof establishes that the decision evolved without adequate study, was plainly inadequate or there was no reasonable basis for the plan (Weiss v Fote, 7 NY2d 579; Friedman v State of New York, 67 NY2d at 271). If the State is relying upon qualified immunity as a defense, then it bears the burden of coming forward initially to establish that the relevant decisions were the product of a deliberate decision-making process (Applebaum v County of Sullivan, 222 AD2d 987, 989; Rinaldi v State of New York, Ct Cl, Corbett J, signed April 3, 2001, Claim No. 85896 [UID No.2001-005-004]).

The State's decision to open this bridge overpass to two-lane traffic again, in light of the impending Woodstock Festival at Griffiss Park, was based on a reasonable assessment of valid safety concerns and is entitled to immunity. Once the repairs were completed permitting two lanes of traffic, there was no reason to return the bridge overpass to one lane of traffic after the festival was over.

Likewise, the State's determination to use 16-inch timber barriers with attached W-beams as the structural means to accommodate the need for two travel lanes, while preventing vehicles from traveling onto the bridge's weakened outer support beams, is also subject to immunity. The decision was based on sound engineering judgment because other options were not feasible given the condition of the bridge overpass. The W-beams attached to the 16-inch timber barrier, according to Mr. Bryden, were intended to prevent the type of vaulting accident Claimant incurred under expected conditions. At the point of initial impact, both experts testified, the barrier performed as intended by redirecting the vehicle. According to Mr. Bryden, given the size and weight of Claimant's truck, the speed at which he was traveling, and the angle at which his truck tire hit the eastern barrier at the point of second impact, even the 24-inch timber barrier preferred by Claimant's expert would have failed.

Placement of the timber barrier was also in issue. In the direction that Claimant was traveling, the timber barrier was installed making the southbound travel lane narrower than the northbound lane by 1.8 feet. Although the decision to make the lane narrower was not revealed by any witness or any documentary evidence and appeared from the testimony of Mr. DeRosa to be contrary to the plans and protocol, according to Mr. Bryden, the lane still provided adequate clearance to traverse even for a vehicle as large as Claimant's. The State adequately warned southbound drivers of this potentially dangerous condition by the placement of the "narrow bridge" warning sign approximately 325 feet from the bridge overpass in accordance with the MUTCD. The sign should have provided secondary notice to a driver proceeding south out of Griffiss Park, for even Claimant testified he could see the bridge overpass when he exited Griffiss Park. The placement of the timber barrier was readily visible with adequate sight distance to permit a driver proceeding south to adjust the vehicle's path for the reduced lane width. [*13]

The State did fail to remove or conceal the original white edge line after the new edge line was painted in front of the timber barrier. From the evidence no affirmative decision was revealed to keep the original edge line visible. Rather, inaction, in terms of both decision-making and physical labor, left the line intact (see McDonough v State of New York, Ct Cl, Lebous J., signed July 14, 2004, Claim No. 100565 [UID# 2004-019-011]; Church v State of New York, Ct Cl, Hard, J, signed September 29, 2004, Claim No. 92341[UID# 2004-032-508]). The testimony from several of the State's witnesses on point rejected any suggestion that the existence of these two edge lines at this quadrant of the bridge overpass were confusing to a driver and provided conflicting information.

Although the conduct of the State in this regard is not immune from review based upon the evidence presented, and certainly the better practice would have been removal or concealment of the original edge line, the Court is not persuaded that this is a substantial factor in causing this accident. A driver would have had to focus solely on the edge line immediately in front of his vehicle without looking ahead or using any peripheral vision in order for this divergence of the edge line to have made any difference to this accident. The testimony established, and the pictures in evidence make clear, that although the existing edge line was apparent and did proceed directly into the timber barrier, the new edge line was even more visible, having been freshly painted, as was the timber barrier itself. The sight distance to the bridge overpass was unobstructed from the Griffiss Park gate giving claimant more than ample opportunity to see the timber barrier before him before the diverged white edge line.

The final factor Claimant attributed as a cause of his accident was the failure of the State to attach aluminum or rigid plastic tube delineators to the timber barrier as shown on the standard sheet (Exhibit 10) and the sketch drawing for the project (Exhibit 11). Mr. DeRosa made the decision to install flush-mounted delineators on the timber barrier, a decision which he was qualified to make as the engineer-in-charge of the project and permitted to make pursuant to the standard sheet. Although the Court agrees with Claimant that the orange tubular delineators mounted to the timber barrier in January 2000 were more visible and for that reason may have been a better choice, that does not mean that Defendant breached its duty of care (see Schwartz v New York State Thruway Auth., 61 NY2d 955). Mr. DeRosa's decision to use different mounted delineators from those on the standard sheet is entitled to the benefit of qualified immunity (Friedman, 67 NY2d at 271; Weiss, 7 NY2d at 579).

Based upon the foregoing, the Claimant has failed to prove that the State's negligence caused the accident. The claim must be DISMISSED. LET JUDGMENT BE ENTERED ACCORDINGLY.

Syracuse, New York

March 17, 2005Diane L. Fitzpatrick

Judge of the Court of Claims Footnotes

Footnote 1:The Court has amended the caption sua sponte to reflect the State of New York as the only proper defendant.

Footnote 2:All references to Claimant will be to Brian S. Wadsworth as the claim of Sharon Wadsworth is only derivative in nature.

Footnote 3:Formerly Griffiss Air Force Base.

Footnote 4:Hereinafter this will be referred to as an edge line.

Footnote 5:At the time of the accident, Officer Platt was a deputy, but he had changed jobs by the time of trial.

Footnote 6:See Exhibits H-1, H-2, A-8, A-4.

Footnote 7:All quotes are from the trial testimony unless otherwise noted.

Footnote 8:The contract included work at other locations as well.

Footnote 9:Exhibit 10.

Footnote 10:Exhibit 11. Exhibit 11 depicts an overhead view of the bridge with the proposed timber barrier. The sketch contains the measurements for a 1' on 15' taper for each of the 4 ends of the barrier.

Footnote 11:See Exhibit 10.

Footnote 12:The standard sheet recommended they be placed on top of 20 mm aluminum or plastic tubes which would be attached to the timber.

Footnote 13:Exhibit A-34, 5, 6.

Footnote 14:Exhibit Q1 - Q21.

Footnote 15:Exhibit 2.

Footnote 16:Exhibit C.

Footnote 17:Exhibits A-12, A-18, A-34, 5, and 7.

Footnote 18:Mr. Serth included in his factors the lack of a "narrow bridge" sign. The Court has not included that in its analysis but accepts that Claimant did not see one that day.

Footnote 19:Mr. DeRosa acknowledged this.

Footnote 20:Exhibit 3.

Footnote 21:Defined as speeds between 60 and 80 km/h or 37.5 and 50 mph.

Footnote 22:Mr. Serth also referred to A Policy on Geometric Design of Highways and Streets, a 1994 publication of the American Association of State Highway and Transportation Offices (AASHTO). Page 345 discusses barrier and mountable curbs and vaulting. It recommends curbs be placed flush with the face of the railing to avoid a possible vaulting hazard. The vaulting hazard relative to bridge rails is also discussed in the New York State Department of Transportation Roadside Design Manual (Exhibit 13).

Footnote 23:Exhibit A-18.

Footnote 24:Exhibit P.

Footnote 25:Mr. Bryden defined this as a tire mark left on pavement when a vehicle attempts to turn or move more sharply than can be sustained by the available pavement friction. He used this mark to determine Claimant's speed when he impacted the eastern barrier in the northbound lane.

Footnote 26:Pursuant to the MUTCD, 200 feet was the maximum distance, no minimum distance is specified.

Footnote 27:The witness marked the scuff on Exhibit A-12 in orange and referred to the other photographs such as A-29 where the police had marked it with paint.

Footnote 28:Exhibit P.

Footnote 29:According to Mr. Bryden a work zone means an area where work is being performed, could be construction, maintenance or utility work. A traffic control zone refers to moving traffic through an area; and a construction zone refers to construction activity. One zone may include another or may be exclusive.