Schmidt v State of New York

[*1] Schmidt v State of New York 2005 NY Slip Op 52377(U) [21 Misc 3d 1114(A)] Decided on November 16, 2005 Ct Cl Patti, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 16, 2005
Ct Cl

Scott M. Schmidt and Elizabeth L. Schmidt, His Wife, Claimants,

against

The State of New York, Defendant.



98418



APPEARANCES:

For Claimants:

ELLIS & KUSTELL

BY: CARL B. KUSTELL, ESQ.

For Defendant:

HON. ELIOT SPITZER

Attorney General of the State of New York

BY: THOMAS G. RAMSAY, ESQ.

Assistant Attorney General

Philip J. Patti, J.

This is an action for personal injuries arising out of a motor vehicle accident which occurred at approximately 11:13 p.m. on June 25, 1996, at the intersection of Lockport Road and Route 425 (a/k/a Shawnee Road) in the Town of Wheatfield, County of Niagara. Claimant, Scott M. Schmidt,[FN1] was traveling northeast on Lockport Road. He alleges that the traffic signal at the intersection of Lockport Road and Route 425 was misaligned and that it simultaneously displayed green and red signals as he approached the intersection. Claimant was driving a 1995 Buick when it entered the intersection and was struck by a tractor trailer traveling southbound on Route 425. Claimant alleges, inter alia, that the State negligently permitted a traffic signal to display green and red on the same approach and failed to install tunnel visors on the traffic signal. Trial of this matter was bifurcated. This decision will discuss issues of liability only.

Before testimony commenced, I addressed both the Defendant's motion in limine (M-68683) to suppress a visual representation of the traffic signal as it allegedly appeared on the night of the accident (Exhibit 1 and its enlargement, Exhibit 1A), and the Claimant's motion in limine (M-[*2]68744) to preclude Defendant from presenting two experts at trial, as their testimony would allegedly be cumulative. I reserved decision on both motions, but address them herein.

Defendant objected to the introduction into evidence of a "graphic image," also referred to as a "visual representation," which had been created to illustrate the traffic signals as they allegedly appeared to the Claimant on the night of the accident. Claimant cited Kartychak v Consolidated Edison of NY (304 AD2d 487), where the First Department allowed into evidence photographs of a recreated work site, and People v Wemette ( 285 AD2d 729), a Third Department decision which noted that the admissibility of photographic evidence is within the sound discretion of the trial court. However, neither Exhibit 1 nor Exhibit 1A, its enlarged version, is a pure photograph, in contrast with those in the cases cited by Claimant. Rather, as Claimant's counsel represented during oral argument:

What we did is we simply took a photograph of the signals, and the artist, after Mr. Schmidt had indicated a number of times what he saw, finally got the right amount of green on it. So it's nothing more than a visual representation, but there was no computers or anything like that involved, Judge.

. . .

It's a photograph with a green mark on it is what it is.

(Transcript, pp. 8-9.)

Although Claimant testified that this visual representation fairly and accurately represented the signals on the night of the accident, the artist who allegedly added the green coloring to the signal light in the photograph was never identified. Moreover, Claimant did not know where the visual representation came from and could not recall being shown various versions of the proposed exhibit showing different amounts of green representing a signal light drawn on the photograph (Transcript, pp. 53, 57-58). No evidence was presented to establish a foundation for, or the authenticity of, Exhibits 1 and 1A. These exhibits are, therefore, inadmissible and all references and testimony relating to them and to what they allegedly depict are hereby stricken (see generally, Kane v Triborough Bridge and Tunnel Auth., 8 AD3d 239).

Claimant's motion in limine to preclude Defendant from introducing at trial two experts whose testimony would allegedly be repetitive and cumulative was also argued before trial and decision was reserved. In support, Claimant argued that, based on Defendant's expert disclosures, the trial testimony of James J. Barnack, a licensed professional engineer, and Frank P. DeGeorge, a civil engineer, would be similar and that he would be inherently prejudiced if the Defendant had the opportunity to repeat its expert's testimony with the testimony of another defense expert on the same subject. Any possible risk that repetitive testimony of two defense experts would somehow strengthen that side's position is without merit as there is no jury to impress. Moreover, after having the benefit of hearing the trial testimony of Defendant's experts, I find that there was no repetitive or cumulative testimony as Defendant's second expert, Barnack, testified only briefly and on a different topic. In the exercise of my discretion, I deny Claimant's motion in limine and permit the trial testimony of Defendant's two experts to stand (see generally, Clemons v Vanderpool, 289 AD2d 1078). [*3]

FACTUAL BACKGROUND

Claimant was a 33 year old funeral director, mortician and one of the senior coroners in Orleans County at the time of the accident. On June 25, 1996, he attended a golf tournament sponsored by the Wilber Burial Vault Company held at the Glen Oaks Golf Course in Amherst, New York. Claimant played a round of golf and ate lunch, consuming four to five 12-ounce bottles of beer during his round of golf, which ended at 3:00 or 4:00 in the afternoon. He stayed for the social hour, dinner and for the raffles and prizes for the tournament. He testified that he did not consume anything but Coke after completing his round of golf because he was the "designated driver." After the tournament, Claimant and three others traveled to the Sundowner Lounge in Canada. They stayed at the Sundowner for approximately 45 minutes. Again, Claimant testified that he drank nothing but Coke at the Sundowner. When they left at approximately 10:30 or 10:40 p.m., Claimant was driving the 1995 Buick which belonged to Merrill-Grinnell, Inc. Michael Pilon was in the front passenger seat, Mark Reed was in the back seat behind the driver, and Jim Nealons was in the back on the passenger's side of the car. Claimant drove to the Rainbow Bridge to return to the United States. The customs inspector at the bridge was Claimant's brother-in-law, Todd Sukdolak.

After passing through customs, someone in the car suggested to Claimant that it would be faster to take Lockport Road back to Albion, New York, where the funeral home Claimant worked for was located. As a result, Claimant ended up on Lockport Road heading in a northeasterly direction. At the time of the accident, Claimant was not particularly familiar with Lockport Road, having traveled it only two or three times in the five years preceding the accident.

According to Claimant, Lockport Road was a flat and relatively straight roadway running in a northeasterly-southwesterly direction. After passing a fork in the road, the speed limit was decreased from 55 mph to 50 mph. Just before passing the Shawnee Fire Company on Lockport Road, Claimant noticed signal lights that looked like tiny dots down the road. As he got closer to the signal lights, Claimant testified that "the one in the middle changed from red to green" (Transcript, p. 44). In addition to the green light in the middle, Claimant observed two red lights on either side of the green one. Claimant testified that it was his understanding that the green light in the middle permitted him to proceed through the intersection and that the red lights on either side of the green one "may have been for different roadways, different lanes (Transcript, p. 45), although he admittedly could not see any turning lanes at the intersection (Transcript, p. 46).

Claimant recalled looking at the Shawnee Fire Hall and noticing that the trucks were in the bays and the garage doors were down. His next remembrance was "hearing [his] father's voice and tasting something cold" (Transcript, p. 48); he was in the hospital. From then to the day of trial, he had no memory of the accident.

On cross-examination, Claimant testified that as he drove into the driveway of the Sundowner Lounge, he received a phone call indicating that there had been an accident in Orleans County, but denied that he was required, as coroner, to return to Orleans County. Rather, he testified that the caller inquired if he was available and he advised that he was not.

Terrence R. Burns, M.D., the Anesthesiology Psych Director at Millard Fillmore Suburban Hospital, testified for Claimant. He was previously a trauma anesthesiologist at the Erie County Medical Center, and, while he did not treat the Claimant, his group managed the Claimant's care in 1996 after this accident.

Dr. Burns testified that he was retained to determine whether or not the Claimant [*4]sustained a memory loss as a result of his accident. In preparation, he reviewed the Claimant's hospital records, some outpatient imaging studies, and conducted an interview of the Claimant. He testified that Claimant sustained a subdural hematoma and a subdural hygroma, which suggested an injury to the intracranial compartment. Dr. Burns also noted that a resident and a nurse had both made a notation in the hospital record that the Claimant had a loss of memory, and the hospital record also contained a note from the Emergency Room physician that the Claimant had been perseverating at the scene. According to Dr. Burns, "perseverating" refers to meaningless speech and is consistent with loss of memory. In Dr. Burns' opinion, Claimant suffered amnesia as a result of the accident.

On cross-examination, Dr. Burns testified that he based his opinion on statements made to him during his 1½-hour interview with the Claimant, as well as the information in the medical records. Dr. Burns was not aware of the statistical incidence of post-traumatic amnesia coupled with subdural hematoma and testified that the duration of posttraumatic amnesia depends on the severity of the head injury.

Next, Michael R. Pilon, the owner of a grocery store in Albion, New York, testified that he has known the Claimant for approximately 20 years, since both were involved with the Albion Fire Department and other community activities. According to Mr. Pilon, he met Claimant and Jim Nealons at Mr. Nealons' funeral home in Albion at around 9:00 a.m. on the day of the accident. They then picked up Mark Reed and continued on to the Glen Oaks Golf Course. He stated that at lunch Claimant had a couple of beers and a couple more on the course after lunch, but that Claimant did not consume any alcohol after the round of golf.

Mr. Pilon testified that he was riding in the front passenger's seat and that Messrs. Reed and Nealons were riding in the back. According to Mr. Pilon, all were wearing their seat belts. As they pulled into the parking lot at the Sundowner Lounge, Claimant received a call regarding a fatal accident in Orleans County, but Claimant stayed, and they left the Sundowner at around 10:30 p.m. As they approached the Rainbow Bridge, Mr. Pilon recalled that Claimant asked if they were all wearing their seat belts, which they were. At customs they had a brief conversation with the customs inspector, Claimant's brother-in-law, and continued on their return trip.

Mr. Pilon testified that at no point did he get a look at the intersection, the traffic going through the intersection, or the signals controlling the intersection before the accident occurred. Immediately before impact, Mr. Pilon heard someone in the back seat yell, "look out!" He then heard a crashing metal sound and the air bag deployed in his face. According to Mr. Pilon, the tractor trailer hit the car directly on the driver's door, pushing the car south onto Route 425 and slightly off the road. Mr. Pilon exited the car and yelled to the others. Receiving no response, he assumed that all were unconscious.

On cross-examination, Mr. Pilon admitted that he had consumed four to five beers during the golf round, two to three mixed drinks before dinner, and another one or two drinks in Canada. As a result of the accident, he sustained a collapsed lung, some broken ribs and bruises on his arms and legs. He never brought any lawsuits as a result of the accident.

Another companion, Mark Reed, a bank examiner for the federal government, did not notice Claimant consume any alcoholic beverages after the golf round. When they left the Sundowner Lounge, Mr. Reed was in the back seat behind the Claimant, and Mr. Nealons was in the back seat behind Mr. Pilon. Mr. Reed believed that Claimant and Mr. Pilon were wearing seat belts, [*5]but acknowledged that neither he nor Mr. Nealons were belted.

Like Mr. Pilon, Mr. Reed did not observe the intersection or the traffic signals before the accident occurred. He remembered cruising at one speed, neither slowing down nor speeding up right before they were struck by the truck. It was only when they entered the intersection that he saw the lights, bumper and the grill of the truck, less than 20 feet away. He yelled "look out!" He did not remember anything else until he regained consciousness in the car and saw firemen who had cut off the roof of the car to get him and the Claimant out. According to him, the truck hit the car at the driver's post, the place where the windshield comes down and meets the body of the car. Mr. Reed never sued anyone as a result of the accident.

Sgt. Kevin P. LoCicero of the Niagara County Sheriff's Department testified that he was familiar with the intersection of Lockport Road and Route 425 because in 1996 he traveled through that intersection about four times each day. According to Sgt. LoCicero, Lockport Road runs northeast and southwest and Route 425 runs north and south in the area of the intersection. He testified that the point of impact occurred more south of the center of the intersection on Route 425. He was able to determine the point of impact because when two vehicles strike, the rims of the tires bear down and gouge the concrete or asphalt. Sgt. LoCicero testified that he had never seen the traffic lights at the intersection appearing as in police photograph Exhibit 6A, and had never seen them displaying green and red lights simultaneously.

Sgt. LoCicero was at the scene of the accident that night to take photographs. While at the scene, he looked at the signal lights and did not observe anything amiss with the signals. He testified that he had a duty and a responsibility to report misaligned signals or signals with problems to the proper authorities, but made no report since he did not observe anything wrong with the signals. On redirect, Sgt. LoCicero testified that if he had perceived signals appearing as they did in police photograph Exhibit 6A, showing a partial green in between two full red lights, giving the illusion that the green controlled a center lane of traffic, he would have reported it.

Dan Sarratori was employed in Lockport and resided in Niagara Falls in June of 1996. He traveled through the intersection of Lockport Road and Route 425 every day on his way to and from work. On his way home, he would travel south on Route 425 and make a right turn onto Lockport Road. On the southeast corner of the intersection there is a general store which has a light in its parking lot. According to Mr. Sarratori, however, it is a fairly dark country area. He testified that if someone were standing on the west side of the intersection on Lockport Road they could not see traffic going south and approaching the intersection. He further testified that if they were standing on Route 425 and about 200 feet from the intersection, they could not see traffic headed in a northeasterly direction along Lockport Road.

On the night of the accident, Mr. Sarratori completed work at 11:00 p.m. and headed to his home, driving south on Route 425. He was driving about 55 mph to 60 mph approximately three car lengths behind a tractor trailer. Before reaching the intersection of Route 425 with Lockport Road, the speed limit was reduced to 45 mph. On this night the signal light at the intersection changed from red to green. When he was about two-tenths of a mile from the intersection, he continued to drive at about 45 mph behind the tractor trailer, which was traveling at about the same speed. Mr. Sarratori intended to make a right turn at the intersection onto Lockport Road. He testified that he saw a flash of red lights that appeared to be taillights from a car already in the intersection going in front of the tractor trailer. He completed his turn around the corner and [*6]heard the collision. He then ran to the car, crawled into the front seat and tried to keep the Claimant calm until the paramedics arrived.

From the time he saw the signal lights turn from red to green, Mr. Sarratori testified that approximately ten seconds elapsed before the collision. On redirect, Mr. Sarratori acknowledged that as much as 15 seconds could have elapsed, but that "15 would be pushing it" (Transcript, p. 190); "I'll stick with ten seconds" (Transcript, p. 191). On the day after the accident, he headed back to work, driving northeast on Lockport Road; he observed the signal lights at that time and testified that the signals appeared normal to him. Mr. Sarratori was familiar with the intersection, and identified the location of the Shawnee Fire Hall on Lockport Road two-tenths of a mile from its intersection with Route 425.

Claimant's brother-in-law, Todd Sukdolak , testified that at the time of the accident he was a teacher and a full-time customs inspector during the summer, and on that night was stationed at the Rainbow Bridge. According to Mr. Sukdolak, it is impossible to pick a particular customs inspector on a summer night because you have to line up so far back that you can't see which inspector is in which booth. Mr. Sukdolak testified that he asked all of the occupants of the car Claimant was driving if they were U.S. citizens, that no one in the car appeared intoxicated, and that he did not smell any alcohol.[FN2]

Lawrence M. Levine appeared as an expert on Claimant's behalf. He is a professional engineer licensed by the State of New York in 1978 and has been involved in several TOPICS (Traffic Operations to Increase Capacity and Safety) projects. These projects were specifically related to intersection maintenance and design and safety improvement. He was also involved in several traffic signal improvement projects. More recently, he has been engaged as a consultant in accident reconstruction cases.

Mr. Levine visited the scene of the accident more than once, the first time being August 7, 1996. He described the intersection as consisting of two, two-lane highways: Route 425 which goes north to south, and Lockport Road, which goes northeast to southwest. According to his measurements, the angle between Route 425 and Lockport Road was 57° to 60°.[FN3] All of the approaches to the intersection were controlled by two signal lights. One was near the centerline and the other was within the lane. With respect to police photograph Exhibit 6, Mr. Levine testified that the partial green light was on the three-face center head that "should be facing directly down for northbound Shawnee [Route 425] traffic" (Transcript, p. 258).

According to Mr. Levine, Route 425 and Lockport Road are almost invisible to one another because of foliage and buildings. The only indication at night to a driver traveling northeast on Lockport Road, as the Claimant was, of an approaching intersection is the traffic signal. There are two street lights at the intersection, but they are set back and cannot be seen by a driver traveling [*7]northeast on Lockport Road until the driver is almost in the intersection. These street lights can be seen, however, when traveling north on Route 425, as the tractor trailer driver was doing on the night of the accident. The speed limit on Lockport Road goes down from 55 mph to 50 mph before the intersection, while the speed limit on Route 425 goes from 55 mph to 45 mph as one approaches the intersection.

During his initial investigation, Mr. Levine found deceleration skid marks on Route 425, but not on Lockport Road. He further noted that one of the signal poles in the intersection was leaning and appeared to be of a different height. According to his measurements, the governing signal head was about 14½ feet above the road, below the 15- or 15½-foot height required to allow trucks to clear underneath.[FN4]

Mr. Levine testified that the "zone of indecision" refers to the distance it takes to brake in order to avoid an intersection. According to his calculations, the Claimant, who was driving a 1995 Buick LeSabre, had 140 feet on a dry surface to brake in order to avoid the intersection, assuming a speed of 45 mph. His calculations measured from the point the brakes were first hit and did not include any reaction time. He stated that from 140 feet away, a driver heading northeast on Lockport Road can see the signal lights at the intersection, but cannot see the signal housings, the lane lines or Route 425.

With reference to police photograph Exhibit 6, Mr. Levine testified that it shows the view looking in a northeast direction down Lockport Road toward the intersection. According to Mr. Levine, this photograph was taken while the officer was standing near the centerline with the camera pointed in a southeasterly direction. He further testified that police photograph RL 96-15767-12 (part of Exhibit Y) was taken just south of the center of the intersection on Route 425 looking toward the signal lights in a northerly direction. According to Mr. Levine, the green signal to the left in photograph RL 96-15767-12 is the same green light that can be seen between the two red lights in Exhibit 6. Mr. Levine then identified Exhibit 66 as being a larger printout of police photograph RL 96-15767-12. He testified that one can see the whole green lens in the signal head on the right in Exhibit 66. With respect to the signal to the left in Exhibit 66, Mr. Levine testified that about of that green lens was turned toward Lockport Road facing the direction the Claimant was driving. He calculated that the lens was approximately 15 degrees off center facing in Claimant's direction. In addition to seeing of the green lens for Route 425, Mr. Levine opined that Claimant would have seen a green reflection on the lens from the inside of the short standard visor. Between the lens and the reflection from the visor, he opined that Claimant would have seen a green diameter greater than ; in other words, a green light that was approximately the same size as a full signal head. Mr. Levine further opined that if the signals had been equipped with the long or tunnel visors and the signal light was aligned properly down the centerline of Route 425 to control northbound traffic, that for traffic northbound on Route 425, a portion of the green lens would still be observable to traffic proceeding as the Claimant was, but with not nearly as much green visible [*8]as there was with short visors.

Based on his review of deposition testimony and maintenance card records, Mr. Levine testified that there had been an accident at the subject intersection in 1988. As a result, the signal heads, which had been 8 inches in diameter, were replaced with 12-inch heads and one new pole was installed. Because the 12-inch heads are bigger, heavier, and take more wind and ice load as they are aluminum, he testified that you "sometimes" have to use a heavier, thicker pole, and that you definitely have to use a higher pole to keep the signal 15½ feet over the pavement. According to him, the pole should be about 1½ to 2 feet taller to support 12-inch heads. On the day of the accident, he testified that there was one pole designed for 12-inch signal heads and one pole designed for 8-inch heads. It was his opinion that installation of 12-inch heads at the irregular 60° intersection in 1988, when the signal system was reconfigured, was not in accord with Section 272.10(f)(3) of the regulations contained in Exhibit 46, the New York State Manual of Uniform Traffic Control Devices (MUTCD).[FN5]

According to Mr. Levine, signals should be inspected at least once a year. During this annual inspection, one would look for alignment issues and, if necessary, realign the signals, tighten the span wires, change the poles or re-lamp the signal. In addition, the inspector should drive up to the intersection from all of the approaches.

He further testified that Section 272.12(b) deals with approach visibility and states that signal faces shall be located so that the right-of-way is clear from the driver's position on the approach to the signal. In his opinion, the signal installation at the time of the accident was not in compliance with this regulation or with good and standard traffic engineering practice because it was dangerous to display a red or green signal in conflict with the display on the other signal faces on the same approach.

Mr. Levine also testified with respect to Section 272.9, stating that subsection (a)(1) proscribes the display of two different colored circular indications on any one signal face. He added that subsection (b) proscribes the display of two different circular indications on different signal faces on any one approach, unless the signal faces are positioned or shielded so that the combination is not confusing to approaching motorists. He opined that the signal at the time of the accident was not in compliance with this regulation or with good and accepted traffic engineering practice.

Mr. Levine identified Section 272.4(b), a more general regulation regarding the display of traffic signal indications, which states that any traffic signal indication that would be misleading or confusing to other traffic should be shielded or positioned or otherwise obscured from the view of the other traffic. He noted that Section 272.4(c) states that signal indications intended to control an approach should be oriented toward and most readily visible to traffic on that approach.

Mr. Levine also reviewed the American Association of State Highway and Transportation Officials (AASHTO) Manual dealing with traffic signal devices (Exhibit 61), specifying section 9.410, which lists 13 procedures regarding traffic signal equipment to be checked during annual inspections, including proper aiming; proper positioning of the visors and louvers; and checking for any conflicting green units. According to Mr. Levine, the New York State Department of Transportation (DOT) would have discovered the misaligned signal light if it had checked the [*9]intersection for any conflicting green units, and the need for tunnel visors would have been apparent.

Mr. Levine testified that if a signal face cannot be aligned by aiming it down the road so as not to be seen by another approach, the standard and accepted traffic engineering practice was to use tunnel visors. According to him, the subject intersection "demanded" tunnel visors (Transcript, p. 351), and there was no reason why they could not have been installed.

Mr. Levine also reviewed the DOT maintenance cards for the day of the accident and Gary Cawthard's [FN6] deposition testimony regarding the replacement of the triple-head signal before the accident. Assuming that the signal crew left the signal head as shown on the police photographs displaying both red and green lenses to northeast bound traffic on Lockport Road, it was Mr. Levine's opinion that such an alignment was not a safe condition. He further believed that this misalignment, together with the violations of the regulations, and the lack of tunnel visors, created a confusing, unsafe condition, and he did not "see any other cause of this accident" (Transcript, p. 353). He stated that tunnel visors were available to the maintenance crew which worked on the signals at the intersection before this accident, and it was his opinion that this crew should not have left the signals misaligned because they created a dangerous situation.

On cross-examination Mr. Levine was asked to calculate the speed at which the Claimant was driving (1) if the Claimant was at the Shawnee Fire Hall when the light changed as testified to by the Claimant (Transcript, p. 65); (2) if the fire hall is two-tenths of a mile from the intersection as testified to by the eyewitness Mr. Sarratori (Transcript, p. 186); and (3) if there elapsed ten seconds between the time the signal changed and the time when the impact occurred as testified to by Mr. Sarratori (Transcript, pp. 189-191). According to Mr. Levine, the Claimant would have been driving 72 mph in order to travel two-tenths of a mile in 10 seconds, but that the Claimant would have been traveling 48 mph if he traveled two-tenths of a mile in 15 seconds.

Defendant called Frank DeGeorge, a designer in the Special Design Squad of the DOT. From 1970 to 1992, Mr. DeGeorge worked as the Traffic Signal Engineer in Charge working out of the Hamburg, New York, signal shop. The signal maintenance crews for Western New York worked from this location. For the past 12 years he has designed traffic signals for contract installations.

Mr. DeGeorge identified the 1971 Notice of Order which authorized a traffic signal at the intersection of Route 425 and Lockport Road (Exhibit L), the 1971 Signal Operation Specifications for the intersection (Exhibit M), and the Operational Specifications for traffic signal 74 at the intersection of Route 425 and Lockport Road dated March 16, 1993 (Exhibit R). He described a triple-head traffic signal as one with three signal units facing in three different directions. The lenses are "constructed so that light reflected through the lens basically shines down on the roadway at the approaching motorist as opposed to straight out"(Transcript, pp. 470-471). Reflectors are installed behind the lenses. These reflectors direct the light from the light bulb out through the lens to enhance the light. Incandescent bulbs are used. One hundred and sixteen watt bulbs are used with 12-inch triple-head signal lights.

According to Mr. DeGeorge, there are various types of hoods: standard hoods which are seen on most traffic signals; tunnel visors; tunnel visors opened at the bottom; and louvered [*10]hoods to shield one part of the light. The determination of which hood to use could be made by the traffic engineer, the operations engineer, the engineer-in-charge, or the designer in engineering, but generally is a decision made at the regional office. Assuming that the traffic signal appeared to the Claimant as it did in the enlarged Exhibit 6A photograph , Mr. DeGeorge opined that neither Section 272.9(a) nor (b) of the MUTCD would have been violated because these subsections proscribe different colored indicators; i.e., a circular red indicator and a vertical green arrow or a circular green indicator and a red arrow, displayed in any one signal face or in different signal faces on any one approach, while the two signals controlling the Claimant's approach were both red.

It was also Mr. DeGeorge's opinion that the signals as displayed in Exhibit 6A conformed with Section 272.12 of the MUTCD (which governs the location of signals) and with Sections 272.4(b) and (c) of the MUTCD (which deal with shielding and aiming) because it is readily apparent which signals face the approach in Exhibit 6A. He also discussed Section 272.10(f)(3) which controls the design of "irregular intersections," a phrase which is not defined within the MUTCD. He described an irregular intersection as one with a multi-lane approach or "something skewed to some degree" (Transcript, p. 484). According to Mr. DeGeorge, the use of hoods or shields cannot always be determined during the design phase unless the intersection is at such an acute angle, like 25° or 30° when the need for hoods or shields is apparent. Otherwise, the decision to use hoods or shields is made by the engineer during the course of installation.

When asked about Sections 272.11(b) and (c) of the MUTCD which control the number of signal faces at an intersection, Mr. DeGeorge opined that the subject intersection was in compliance because one of the intersecting roadways at the intersection is a state highway, which mandates the use of two signal faces directed toward each intersection approach.

Mr. DeGeorge was shown the four drawings made by Mr. Levine (Exhibit 55), together with a transparency (Exhibit AA) of a tracing of a portion of the lower right-hand side green lens made by Mr. DeGeorge from one of Mr. Levine's drawings. According to Mr. DeGeorge, if the transparency was laid over the drawing of the full signal head it could be seen that the portion of the green light which Claimant testified he saw was far less than the testified to by Mr. Levine. He further testified that the perspective of the isometric drawings made by Mr. Levine was not proportionately correct because they were two 2-dimensional pictures put together to try to make a three-dimensional drawing. According to Mr. DeGeorge, if the two-dimensional drawing of the allegedly misaligned signal had been drawn on a 60° angle as was the Claimant's approach to the intersection, then the Claimant would have seen much less of the green lens and of its housing than depicted in the drawings in Exhibit 55 because the right-hand signal (the allegedly misaligned signal) would actually sit further back than it appears in the drawing, slightly behind the left-side signal in the drawing.

On cross-examination, Mr. DeGeorge testified that one of the signal poles had been replaced at the intersection after the 1988 accident when a truck knocked down the pole, and that the 8-inch signals were replaced by 12-inch signals, work which was done under Mr. DeGeorge's supervision, with no separate input from the design engineering group. According to him, 12-inch signals need a pole roughly a foot taller than those used for 8-inch signals. He stated that in 1988 he did not direct the placement of tunnel visors, noting that when signals are installed and aimed, a member of the signal crew should walk down all of the approaches to view the lenses and, if red and green are displayed simultaneously on the same approach, the crew should remedy the situation. [*11]He characterized the work in 1988 as maintenance work and therefore no engineering study was done prior to the changes. He further testified that it was proper to align each signal face down the approach it controls. If the signals could not be adjusted so as to stop displaying circular red and green on one approach, some action should have been taken to align them properly.

Mr. DeGeorge went on to state that the subject intersection could be described as irregular, and Section 272.10(f)(3) of the MUTCD indicates that irregular intersections with small angles between them frequently necessitate shields, louvers, visors or other means so that the approaching driver sees only the indications controlling his or her movement (Transcript, p. 520). He agreed that a signal face that shows half of it on one approach and half of it on another approach is misaligned. Mr. DeGeorge also agreed that a green signal could be seen from the two approaches shown in photographic Exhibits 6 and 66, and that "perhaps" the signal was misaligned (Transcript, pp. 529-530). According to Mr. DeGeorge, if tunnel visors had been put on the signals, one might not see the green lens but still would see some of the green light from the reflection.

On redirect, Mr. DeGeorge testified that when the new pole was installed in 1988 the skew of the intersection would have been discussed. It was his recollection, however, that it was decided that the skew of the intersection would not affect the visibility of the heads on any one approach.

Mr. DeGeorge observed that whether a particular photograph indicated a misaligned signal would depend on the position of the photographer when it was taken. He added that while Section 272.10(f)(3) of the MUTCD talks about irregular intersections and an intersection with a comparatively small angle between the signal face indicators, neither the phrase "irregular intersection" nor the phrase "comparatively small angle" are defined in the MUTCD. The designer in the field would take into consideration the angle between the lenses and the angle of the intersection.

Deputy Hugh C. Messer of the Niagara County Sheriff's Department was on road patrol on the evening of the accident and responded to the accident, traveling northeast on Lockport Road, in the same direction as had the Claimant. He did not observe anything unusual about the signal lights as he approached the intersection. After checking on the condition of the occupants, he checked the traffic signals. He testified that there did not appear to be any problems with the traffic signals at the intersection. If he had observed any such problems, it was part of his duty to report them to the agency in charge of traffic signals, but he made no such notification in this instance. On cross-examination, he admitted that he never actually looked up at the traffic signals.

Deputy Messer talked to the Claimant, who informed him that the driver of the tractor trailer had run a red light. After conversing with the truck driver and a witness, Deputy Messer issued a traffic summons to the Claimant for passing a red light.

James Barnack, the Regional Traffic Engineer for DOT, manages the Regional Traffic Office and is in charge of the safety group, operations group, design review section, ITS section, truck and bus inspection, and the signal crews. He has a civil engineering degree and is a licensed professional engineer. Mr. Barnack described the phrase "zone of indecision" as an engineering term which refers to the zone wherein which the motorist cannot stop without going into the intersection or wherein which the motorist cannot get through the entire intersection without speeding up. It only applies when a signal changes from green to yellow, because that is when the motorist must make the decision whether to stop or proceed. It does not apply when there is a red light because the [*12]motorist must stop for a red light.

Mr. Barnack testified that a motorist approaching the intersection who saw the signals at the intersection from two-tenths of a mile (or 1056 feet) back would have sufficient time to stop the vehicle. According to the calculations on Exhibit S, a vehicle traveling 45 mph would have a stopping distance of 291.2 feet and a vehicle traveling at 50 mph would have a stopping distance of 351.3 feet.

Portions of the deposition transcripts of several DOT employees and former employees were received into evidence as Exhibit 62.[FN7] Gary Cawthard, assistant traffic and signal [*13]mechanic with the New York State Traffic and Safety Division, had been employed by the State since 1989 and with the signal crew since July 1992. He testified at his September 2002 deposition that it was standard practice to walk down the road when aligning a signal to see if the signal displays only one color. On June 25, 1996, several hours before the subject accident occurred, Mr. Cawthard and another DOT employee performed some work on the signals at the intersection of Route 425 and Lockport Road. According to the Traffic Signal Maintenance Card (Claimant's Deposition Exhibit 10, Trial Exhibit 24), he was at the intersection to "Replace triple Section 12 [inch] Head that was hit" during an earlier accident. While he could not recollect if he had realigned the signals at that time, it was standard procedure when aligning a signal for one person to be on the truck by the signal and for another person to walk down the center of the road for about 300 feet and look up at the light to make sure that the indications were proper. It was also standard procedure to check to see that two colors were not showing for approaching traffic. While he could not recall this job, he testified that this standard procedure was followed every time he worked at an intersection.

According to the Traffic Signal Maintenance Card for June 26, 1996 (Exhibit 60), Mr. Cawthard returned to the intersection the following day to "Install Reflector Realign Head." Mr. Cawthard had no independent recollection of this task either, but testified that it was not necessary to align the signal when installing a reflector. He did not know if the head that was aligned on the 26th was the same head that was installed on the 25th.

With reference to a photograph of the intersection (Exhibits 6 and 6A), Mr. Cawthard agreed that the signal head to the left, which displays a full red light and a partial green light, was not properly aligned. He further agreed that the signal heads in the photograph had short angled visors and that this type of visor would not be helpful in preventing two colors from showing at the same time. On no occasion had Mr. Cawthard reported that long visors should be used on a particular signal.

Mr. Cawthard was deposed again on June 17, 2004, by which time he had been promoted to the position of traffic signal mechanic. Mr. Cawthard testified that he had never been given a copy of the MUTCD and that he was not familiar with Section 272.10(f)(3) or with the term "irregular intersection." He further testified that it was never an acceptable practice to align a signal so that it shows a full red bulb and part of a green bulb for the same approach of traffic. When shown a photograph of the intersection (Exhibits 6 and 6A), Mr. Cawthard testified this time that the signal was properly aligned. According to Mr. Cawthard, he always indicated on the Traffic Signal Maintenance Card if he had aligned a traffic signal. The card for the afternoon of the subject accident does not indicate that the signal was aligned at that time. The card for the following day, however, did indicate that the signal had been realigned at that time.

While unfamiliar with the practices of other traffic signal mechanics, Mr. Cawthard testified that he did not carry any visors in his truck when going out on calls. Finally, Mr. Cawthard testified that when he replaces a head he installs it into the span wire, wires it, and then aligns the head to its proper indication on the road.

Portions of the deposition transcript of Joseph P. Kaleta, taken on September 12, 2002, including the additional pages proffered by the Defendant, and portions of the deposition [*14]transcript taken on June 16, 2004, were received into evidence as part of Exhibit 62. Mr. Kaleta was a traffic signal mechanic employed by the DOT since 1970. He recalled being contacted by the dispatcher on June 25, 1996, and told that a signal had been hit. According to the Traffic Signal Maintenance Card for that day (Claimant's Deposition Exhibit 1, Trial Exhibit 23), Mr. Kaleta went to the subject intersection with Pete Kasperek. When he arrived at the intersection he noticed that a signal head was hanging by its wires. Both men removed the head and called the shop to deliver a new head. According to Mr. Kaleta, the damaged head controlled traffic proceeding north and south on Route 425 and traffic proceeding northeast on Lockport Road. Mr. Kaleta left Mr. Kasperek to hang the new head with the individuals who delivered it.

With respect to the Traffic Signal Maintenance Card for June 25, 1996 (Exhibit 23), Mr. Kaleta stated that the word "adjust" on the card means to adjust the head according to the approaching traffic it faces. He further stated that he didn't check the box "adjust" on the card because he did not hang the head. With reference to the Traffic Signal Maintenance Card for June 26, 1996 (Claimant's Deposition Exhibit 7, Trial Exhibit 60), Mr. Kaleta stated that he received a call from his supervisor, John Duggan, that morning for a scheduled repair at the subject intersection and that he and Gary Cawthard went out to install a reflector. Mr. Kaleta did not install the reflector. He directed traffic. The installation would have been done by Mr. Cawthard who wrote the maintenance card. Mr. Kaleta did not walk down the yellow line and look at the signal. He further stated that it was not standard practice for one man to walk down the road while another stood by the signal and adjusted it, especially where there was heavy traffic to divert around the State vehicles. It was not necessary, however, to adjust a head when installing a reflector.

The June 26, 1996 maintenance card (Exhibit 60) also indicated that a traffic control head was realigned at the accident site. Once again, Mr. Kaleta stated that Mr. Cawthard realigned the head because Mr. Cawthard filled out the maintenance card. At this intersection, according to his testimony, it was the practice to have someone walk down the road if there was a third person present, but if there were only two people, this was not the practice because someone had to direct the traffic. With respect to one of the police photos taken the night of accident (Claimant's Deposition Exhibit 3, Trial Exhibits 6 and 6A), Mr. Kaleta stated that it would depend on where one was standing in the intersection as to whether one saw any of the opposing color. He further stated that it was not more difficult to align a signal at a less than 90° intersection and that such an intersection presented no more reason to walk down the road than any other intersection.

According to Mr. Kaleta, the engineering department designates which intersections need tunnel shields or standard shields. Angled or longer hoods are not in the trucks when the signal mechanics go out on calls.

Mr. Kaleta could not recall if the head that was realigned the day after the subject accident was the same head that had been installed the day before. The number on the maintenance cards refers to the signal location and to the box number. There was no way to tell from the signal number 74 appearing on both the maintenance card for June 25, 1996 (Claimant's Deposition Exhibit 1, Trial Exhibit 23), and on the maintenance card for June 26, 1996 (Claimant's Deposition Exhibit 7, Trial Exhibit 60), whether or not the same head was worked on on both days.

At his next deposition, conducted on June 16, 2004, Mr. Kaleta stated that while he would never leave a signal so that a driver on the approach would see red and green simultaneously, there were intersections where approaching drivers could see a reflection of another color but not [*15]the opposing light bulb. He agreed that if an approaching driver saw both a red bulb and a green bulb that the signal would be misaligned. He further stated that aligning signals was part of the duties of the maintenance crew.

Charles S. Privitera, a traffic signal mechanic at the time of the accident who had been employed by DOT for 31 years, was deposed on June 23, 2004 (see Exhibit 62). According to the Traffic Signal Maintenance Card for April 13, 1988 (Privitera Deposition Exhibit 7, Trial Exhibit 41), signal heads were hung at the subject intersection. He did not know if 12-inch heads were hung that day because the "12-inch" written in a circle on the bottom of this card was not in his handwriting. He stated that there was no standard practice with respect to aligning signal heads. According to Mr. Privitera, it depended on the number of men available who would try to align a signal so that oncoming traffic could see it. If he had seen a signal face from another intersecting road on the approach he was aligning, he would have tried to realign the signal differently, but if that was not possible, he would have told his supervisor, who would decide whether to use a tunnel or long shield. Upon being shown a police photograph taken at the scene of the subject accident (Barnack Deposition Exhibit 1, Trial Exhibits 6 and 6A), Mr. Privitera stated that he would have installed tunnel visors on the signal heads.

Portions of the deposition transcript of Gail M. Vara, nee Young, were also received as part of Trial Exhibit 62.[FN8] From December 1981 to October 1989, Ms. Vara was employed by DOT as a laborer and later as an assistant signal mechanic. She testified that the police would occasionally advise that people were not heeding the full red ball and would either jump the light or assume that they had an indication to proceed. The supervisor would then instruct the signal crew to install a long or a tunnel visor to eliminate shadowing or reflections. Ms. Vara could not recall the signal or the intersection where this occurred, but she stated that it would have occurred at an intersection where the signal crew could not eliminate some reflections because the intersection was less than 90°. According to Ms. Vara, the signal crews carried as much equipment as possible in the trucks, and that long and short hoods were generally carried.

In addition, portions of the deposition transcripts of John J. Duggan taken on September 12, 2002 and on June 16, 2004, were received into evidence as part of Exhibit 62. Mr. Duggan had been employed with DOT for approximately 20 years as supervising traffic signal mechanic. According to Mr. Duggan, it was standard procedure to walk down the road when aligning a signal where there were two or three men available for the installation. Procedurally, one worker would align the signal and then get off the truck and walk down the road to check on the alignment, while the second worker directed traffic. He stated that the signal would not be properly aligned if red and green were seen on the same signal. At an angled intersection, however, it was possible that one would see the other color, but that the color of the light for the approaching vehicle would be brighter than the color on the opposite approach. When walking down the road to check [*16]the alignment of a signal, Mr. Duggan stated that the worker looks to see if the approach is getting red and green on the same signal. Mr. Duggan agreed that long shields exist which could be installed on the signals at intersections with less than a 90° angle, but that these long shields are not available to workers in the field and that the engineering department would have to specify them.

Mr. Duggan testified that an unscheduled call is one that comes right in, while a scheduled call would be one that came in the day before or that morning. He had no recollection if anyone told him on June 25, 1996 or on the morning of June 26, 1996 that the crew which had replaced a triple head at the subject intersection on June 25 had to return the following day to complete the work.

With reference to one of the police photographs taken at the accident site (Claimant's Deposition Exhibit 3, Trial Exhibits 6 and 6A), Mr. Duggan agreed that if he had seen the signal as displayed in Exhibit 6 while standing within the yellow line, that he would have tried to realign the signal, assuming he could see the green from the other approach in daylight. Otherwise, long tunnels could be put on the signal, but not without a work order from the engineers. Mr. Duggan also stated that someone would have requested long shields or tunnels if it had been necessary to aim the signals toward the shoulder to align them, but no one ever requested long shields.

DECISION

Based on the trial testimony and the exhibits admitted into evidence, I make the following findings of fact: (1) the subject intersection consists of two, two-lane highways; Route 425 goes north to south and Lockport Road goes northeast to southwest; (2) the angle of the intersection is 57° to 60°; (3) when the Claimant was two-tenths of a mile or 1056 feet from the intersection, he observed the signal lights at the intersection displaying two solid red lights and a partial green light between the two red lights; (4) the signal was misaligned at the time of the accident; (5) there were no tunnel visors on the signal heads at the time of the accident, and (6) Claimant did not speed up, slow down, brake or attempt to stop as he approached and entered the intersection at an excessive rate of speed.

Claimant has requested that the principles recited in Noseworthy v City of New York (298 NY 76) be given consideration due to the amnesia he sustained as a result of the accident as testified to by Dr. Terrence Burns (pg. 6, supra). The Noseworthy doctrine permits a reduced burden of persuasion in considering evidence and allows the fact finder to assign more weight to circumstantial evidence because a claimant cannot describe the event due to the amnesia (Sawyer v Dreis & Krump Mfg. Co., 67 NY2d 328; Holiday v Huntington Hosp., 164 AD2d 424). Here, however, while Claimant does not recall the collision, he does remember and was able to testify to the events leading up to the accident and was able to describe the displays of the traffic signals at the intersection he was approaching when he was two-tenths of a mile from the intersection. Moreover, this was not an unwitnessed accident, and I had the benefit of the eyewitness testimony of Daniel J. Sarratori and of the testimony of two of the three passengers in the vehicle Claimant was driving. Because direct evidence was available, I find that the Noseworthy doctrine is not applicable (Rosario v State of New York, Ct Cl, UID No. 2004-029-445, Claim No. 103673, Nov. 12, 2004, Mignano, [*17]J.).[FN9]

The State of New York has a nondelegable duty to adequately design, construct and maintain its roads and highways in a reasonably safe condition to prevent foreseeable injuries (Friedman v State of New York, 67 NY2d 271). This duty extends to traffic signals maintained by the State. Vehicle and Traffic Law §1681 requires DOT to properly maintain the State's traffic signals. In order for liability to attach, however, the ascribed negligence in maintaining the signals must be a proximate cause of the accident (Hearn v State of New York, 157 AD2d 883, lv denied 75 NY2d 710). The State may assume that those using the roads will use reasonable care and obey the laws governing the operation of motor vehicles (see, Tomassi v Town of Union, 46 NY2d 91, 97). The State is not an insurer of the safety of its roads and the mere happening of an accident does not confer liability (Friedman v State of New York, 67 NY2d 271, supra).

Where a claim is based upon negligent design, the State's planning and decision making function enjoys qualified immunity (Weiss v Fote, 7 NY2d 579, rearg denied 8 NY2d 934). Liability attaches only when the design was evolved without adequate study or lacks reasonable basis. The standards of the day apply with respect to design (see Segnit v State of New York, 148 AD2d 519, lv denied 75 NY2d 702). Once the State has implemented a traffic plan, it is "under a continuing duty to review its plan in the light of its actual operation" (Friedman v State of New York, 67 NY2d 271, 284, supra, [citing Weiss v Fote, supra, and Atkinson v City of Oneida, 77 AD2d 257]). Failing to correct a known hazardous design could render the State liable based on its "continuing duty to review its plan in the light of" operations (see Atkinson v County of Oneida, 77 AD2d 257, 261).

Here, Claimant alleges that the State negligently violated its own standards in 1988 when it installed 12-inch in lieu of 8-inch signal heads at the intersection and failed to utilize tunnel visors or other shields, allegedly in violation of Section 272.10(f)(3) of the MUTCD (see 17 NYCRR 272.10[f][3]). This section states:

(f) Visibility and shielding. Each vehicular signal face shall be adjusted so that its indications will be of maximum effectiveness to the approaching traffic they are intended to control....

(3) Irregular intersection design frequently necessitates placing signal faces for different approaches with a comparatively small angle between their indications. In these cases, each indication shall, to the extent practicable, be shielded or directed by visors, louvers, or other means, so that an approaching driver sees only the indication controlling his movement. Tunnel visors exceeding 12 inches in length shall not be used on free-swinging signals.

Nothing in this section mandated the installation of tunnel visors at this intersection. All of the experts and witnesses agreed that nothing in the MUTCD defines the term "irregular intersection." But even if this intersection could be considered "irregular" because one of its angles was less than 90 degrees, this section does not require the use of tunnel visors or shields on every "irregular" intersection. Rather, the section uses such phrases as "frequently necessitates" and "to [*18]the extent practicable" language far short of that needed to require tunnel visors or shields on every irregular intersection. Moreover, there were no indications that longer visors were needed, even if not mandated. The work at the intersection in 1988 was not, as Claimant argues, a formal reconfiguration of the intersection. Rather, the work was maintenance involving the replacement of a signal pole and signal heads occasioned by an accident when a vehicle struck one of the signal poles at the intersection. There were no indications that this accident involved the signal head displays or could in any way have been prevented by the use of tunnel visors or longer shields. In fact, while Claimant argues that the State had actual or constructive notice of the need for such visors or shields, he has failed to establish that any of the accidents that had previously occurred at this intersection were similar in nature to the subject accident, and there was no evidence of any complaints of a misaligned signal head or of a confusing display of signal lights at this intersection.

The prior accident history was simply insufficient to put Defendant on notice of a dangerous condition or to impose a duty to take remedial action (Martin v State of New York, 305 AD2d 784). Merely because Claimant's expert opined that the signal heads should have been shielded or provided with tunnel visors does not establish that Defendant breached a duty to plan highways (see Schwartz v New York State Thruway Auth., 61 NY2d 955). Something more than a mere choice between opinions of experts is required before the State or one of its subdivisions may be charged with a failure to discharge its duty to plan highways for the benefit of the traveling public (Weiss v Fote, 7 NY2d 579, supra). No such evidence was presented. Moreover, uncontroverted testimony established that any decision to use tunnel visors in lieu of the standard visors was left to the judgment of the engineers. Such determinations are within the immunity concept enunciated in Weiss v Fote (7 NY2d 579, supra). The State is entitled to immunity in this regard (Friedman v State of New York, 67 NY2d 271, supra).

The credible evidence, however, did establish that the Claimant was faced with two red lights directed toward his northeast approach to the intersection on Lockport Road, plus a portion of the green light meant to control traffic proceeding north on Route 425 which appeared in between the aforesaid red lights. According to Claimant's testimony, he assumed that the green light in the center allowed him to proceed and that the two red lights controlled other lanes at the intersection or were turning signals. The unrefuted evidence also established that the subject intersection had been the situs of an accident that had occurred earlier on June 25, 1996 when the traffic signal involved in this accident had been struck. As a result of this earlier accident, a new triple-head traffic signal had been hung at the intersection. Furthermore, while there was testimony that it was the practice for one of the signal crew to walk down the approaching highway after installation to check on the alignment of the signal head being installed, the signal crew workers who installed the new head hours before the subject accident testified that this procedure was utilized only when the crew consisted of three workers, as a second worker was needed on top of the truck aligning the head while the third worker was needed to direct traffic. Only two crew members remained to install the new light, and it does not appear that either walked down the road to check on the alignment. There was also credible testimony that the lights at the intersection had never before appeared as they did in the police photograph (Exhibit 6) taken on the night of the accident.

I was not persuaded by the trial testimony of the State's expert, Frank DeGeorge, a designer in the Special Design Squad of DOT, and I found the trial testimony of Claimant's expert, Lawrence Levine, for the most part, to be credible. Mr. Levine opined that the signal at the [*19]intersection had been misaligned by the signal crew after the earlier accident and presented AutoCAD diagrams illustrating the degree of the misalignment and the amount of the green light meant for drivers traveling north on Route 425 which was visible to Claimant on his approach to the intersection. Finally, even Sgt. LoCicero testified that the lights as depicted in police photograph Exhibit 6 would have led him to stop if he were in the lane facing one of the red lights, but would have led him to believe that he had the right to proceed in the lane facing the green light. While there was only one lane approaching and entering this intersection, Claimant was not particularly familiar with the intersection and could easily have been confused by the signal display he first observed as he neared the fire hall approximately two-tenths of a mile from the intersection. I find that 17 NYCRR 272.9 and 272.12 of the MUTCD were violated by the misalignment of the triple-head signals at this intersection.[FN10]

While the substantial weight of the credible evidence established that the misaligned traffic signal at the intersection contributed to the accident, it was not the sole proximate cause. Indeed, I conclude that a significant contributing factor to the accident was the Claimant's own negligence. In fact, while Claimant may have been momentarily confused by the two red lights and a portion of a green light in between the red lights meant for northbound traffic on Route 425, he was still required to stop for the red light. His own expert, Mr. Levine, testified that he would have stopped at the intersection if faced with the signal configuration the Claimant faced at the time of the accident. At the very least, Claimant should have slowed down and proceeded into the intersection with care. And yet, his passenger, Mr. Reed, testified that the Claimant continued to drive without altering his speed as he approached and entered the intersection, and neither Mr. Levine nor Sgt. LoCicero found any evidence that the Claimant made any attempt to brake or take any defensive action.

Both Claimant's expert, Mr. Levine, and the eyewitness, Mr. Sarratori, testified that the fire hall on Lockport Road was two-tenths of a mile, or 1056 feet from the intersection. Utilizing Mr. Levine's calculations that a vehicle traveling 45 mph on a dry surface, as was the pavement on the night of the accident, could stop in 140 feet without allowing for reaction time, and the testimony of the State's expert, Mr. Barnack, that a vehicle traveling 45 mph could stop in 291.2 feet, presumably allowing for reaction time, Claimant had more than sufficient time to stop before the intersection when he first observed the signals from the fire hall, two-tenths of a mile away, if he had been driving within the speed limit. In addition, Vehicle and Traffic Law §1180(e) requires a driver to "drive at an appropriate reduced speed when approaching and crossing an intersection." I find that the Claimant was not traveling at a reduced speed as he entered the intersection. In fact, there was credible evidence that the Claimant was actually exceeding the posted speed limit. Given that the fire hall was two-tenths of a mile from the intersection, Claimant's testimony that the "center" light changed to green when he was at the fire hall, and the testimony of Mr. Sarratori that ten seconds [*20]elapsed [FN11] between the time the signal changed and impact occurred, the Claimant would have been traveling at approximately 72 mph to reach the intersection in ten seconds, according to Claimant's own expert, Lawrence Levine. Moreover, the Claimant was bound to see that which by the proper use of the senses he should have seen (Weigand v United Traction Co., 221 NY 39; Avila v Mellen, 131 AD2d 408; Terrell v Kissel, 116 AD2d 637; Mohamed v Frische, 223 AD2d 628). While the Claimant may have been momentarily confused by the configuration of the lights when he was at the fire hall, he should have realized as he approached the intersection that there was only one lane of traffic through the intersection and that the partial green light he perceived governed a different approach. Unfortunately, he either disregarded the solid red lights at the intersection or was simply not paying attention.

I conclude that the Claimant and the State both were negligent and that their negligence contributed to the happening of the accident. The Court apportions liability at 60% on the part of the Claimant and 40% on the part of the Defendant.

The Clerk is directed to enter an interlocutory judgment on the issue of liability. A trial on the issue of damages will be scheduled as soon as practicable.

LET INTERLOCUTORY JUDGMENT BE ENTERED ACCORDINGLY.

Rochester, New York

November 16, 2005

PHILIP J. PATTI

Judge of the Court of Claims Footnotes

Footnote 1:Because the claim of Elizabeth L. Schmidt is derivative, "Claimant" shall refer to Scott M. Schmidt only unless otherwise indicated.

Footnote 2:I attach no credibility to Mr. Sukdolak's testimony regarding his not detecting an odor of alcohol when he questioned those in the car, since at least two of the passengers had admitted to drinking alcohol throughout the day and evening, including at the Sundowner Lounge which they had just left.

Footnote 3:On cross-examination Mr. Levine testified that his measurements of the intersection indicated a 60° angle. The 57° figure came from the 1997 plan of the intersection.

Footnote 4:On cross-examination Mr. Levine testified that he was using a 13½-foot survey rod (which he described as the legal limit for the height of a truck under the Vehicle and Traffic Law) to measure the height of the signal head, and that his testimony that the head was about 14½ feet above the road was based on his observation that the head appeared to be about one foot above the survey pole.

Footnote 5:This regulation concerns the use of tunnel visors or shields at some irregular intersections.

Footnote 6:An assistant traffic and signal mechanic with the New York State Traffic and Safety Division (see pp. 22-23, infra).

Footnote 7:Defendant objected to certain portions of these transcripts. These objections were contained in Exhibit Z and Claimant's responses were contained in Exhibit 70. Defendant's objections can be broken down into several categories. To reiterate, any references in any of the deposition transcripts to Claimant's Exhibits 1 or 1A are stricken from the record. Defendant also objected to portions of the transcripts of Messrs. DeGeorge (subsequently withdrawn), Duggan and Cawthard wherein they were asked to comment on the testimony, as characterized by Claimant's counsel, of other witnesses. The testimony of the "other witnesses" speaks for itself. None of the witnesses appeared to be confused, however, by counsel's characterizations of previous deponents' testimony and seemed to base their testimony on their individual experiences. I will let their testimony stand. Next, Defendant objects to hypothetical and opinion questions directed to fact witnesses and to witnesses testifying to matters allegedly beyond their speaking authority. The general rule is that lay witnesses may testify only to facts and not to their opinions and conclusions drawn from the facts (People v Russell, 165 AD2d 327, affd 79 NY2d 1024). Lay witnesses have, however, been allowed to testify as to the estimated speed of an automobile because of the prevalence of automobiles in our society and the frequency with which most people view them at different speeds (Shpritzman v Strong, 248 AD2d 524). While the deposition witnesses herein were lay witnesses, they were not ordinary witnesses. They were in fact current or former employees of DOT who were members or supervisors of signal crews, and their background and experience had been explored in their respective depositions. As such, they each had a unique perspective and their testimony will be allowed to stand. As the trier of fact, I will decide the weight and the credibility of the evidence (Dominguez v Manhattan & Bronx Surface Tr. Operating Auth., 46 NY2d 528). This decision does not mean that the testimony of these witnesses will be binding on the Defendant. Claimant has not shown that these witnesses had the requisite legal authority to bind Defendant by their statements (see Martin, Capra & Rossi, New York Evidence Handbook, §8.3.2; Loschiavo v Port Auth. of NY & NJ, 58 NY2d 1040; Simpson v New York City Tr. Auth. 283 AD2d 419). In addition, because evidence of any subsequent changes to the traffic signals at the intersection is not admissible as evidence of negligence (Goode v City of New York, 15 AD3d 440), any such testimony or evidence as to how the intersection may have been reconfigured or the signals changed months or years after the accident has been stricken. Evidence regarding the maintenance work that was done at the subject intersection the following day is, however, admissible, not on the issue of negligence, but to help the trier of fact understand how the signals and the intersection were configured at the time of the accident.

Footnote 8:Defendant objected to the admissibility of the deposition testimony of Ms. Vara in toto on the grounds that she was not employed by DOT at the relevant times and that her testimony did not relate to the subject intersection. Her testimony did relate, however, to general procedures which allegedly occurred at the time that the subject intersection was maintained before the accident. The fact that her testimony does not specifically relate to the subject intersection goes to its weight and not its admissibility.

Footnote 9:Selected unpublished decisions and orders of the Court of Claims are available via the internet at www.nyscourtofclaims.state.ny.us/decisions.

Footnote 10:The Claimant has also alleged that the State negligently failed to post signs warning of an approaching intersection, failed to cut back the foliage at the intersection and negligently used a signal pole which was too short for the intersection. These allegations are rejected, as the Claimant has failed to establish their merit by a fair preponderance of the credible evidence and there is no evidence that any of these allegations were a proximate cause of the accident.

Footnote 11:The Court recognizes that Mr. Sarratori testified that the elapsed time between the signal change and impact could have been as long as 15 seconds. He also testified that it was possible that the elapsed time was less than 10 seconds. On reflection, however, he stated that 15 seconds would be pushing it and he ended up sticking with 10 seconds (Transcript pp. 190-191).