Carlo v State of New York

[*1] Carlo v State of New York 2006 NY Slip Op 51947(U) [13 Misc 3d 1222(A)] Decided on September 18, 2006 Ct Cl Scuccimarra, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 18, 2006
Ct Cl

George Carlo and Julia Carlo, as parents and natural guardians of Anthony G. Carlo, an infant, and George Carlo and Julia Carlo, individually Claimant(s)

against

State of New York, Defendant(s)



104937



Claimant's attorney:THE LAW FIRM OF WILLIAM G. SAYEGH, P.C.

BY: ANDREW W. HUMPHREYS, ESQ.

Defendant's attorney:HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERAL

BY: JEANE L. STRICKLAND SMITH, ASSISTANT ATTORNEY GENERAL

Third-party defendant's attorney:

Thomas H. Scuccimarra, J.

George and Julia Carlo, the parents of Anthony Carlo, allege in their claim that their son was caused to suffer serious personal injury as a result of the State's negligence in allowing a known dangerous condition to exist on State Route 376 near its intersection on its eastern side with an entrance to a park operated by the Town of East Fishkill Recreation Department. Specifically, they allege that because of the Defendant's failure to properly design and maintain the roadway, and assure that adequate pedestrian crosswalks and the like were constructed, their son Anthony was struck by a car on June 25, 2001 as he attempted to cross the roadway. Trial of the matter was held on January 23, 24, 25, 26, 27 and 30, 2006. This decision relates solely to the issue of liability. [*2]

FINDINGS OF FACT

On June 25, 2001 Anthony Carlo was 13 years old. Although he could not recall any details of his accident at trial, he did remember that he had been to the East Fishkill Recreational Center on a number of occasions, having attended summer camp for many years. He also used the park throughout the year to go fishing, usually on weekends. His normal route when he left the park, either on foot or by bicycle, was from the recreation center's access road intersecting with Route 376. He would walk on the sidewalk on the eastern side of 376 until he got to a separation between two buildings housing Nick's pizzeria and a bank. At that point, he would generally cross Route 376. His family's home was and is on Candy Lane, a local road in a small suburban development off of Unity Street. Unity Street is a larger local road, directly intersecting with Route 376 on the western side of the state road, north of the entrance to the recreation center. Anthony estimated that he had used the recreation area at least 30 times prior to the day of his accident.

Denise Marinaccio, a long time resident in the area, testified concerning her observations of the accident involving Anthony on June 25, 2001. On that day she was going to the First Union Bank on Route 376 to deposit her last paycheck for the school year, traveling northbound on Route 376. The entrance to the bank is just past the entrance to the recreational center. As she was making her right hand turn from Route 376 into the bank parking lot, she saw a boy standing on a berm of grass between the sidewalk in front of the bank parking lot, and Route 376, with a bicycle. As she made her turn she observed him still standing and waiting on this grassy area - he had not stepped off the curb - to the left hand side of a telephone pole. He appeared to be trying to cross Route 376. She parked her car, and heard an impact. She saw a car with a woman getting out on Route 376, blocking any view of the boy. She herself got out, pulling out her cell phone and calling 911. The next time she observed Anthony was when he was lying in the street close to the center yellow line of Route 376, with his bicycle to his side. [See Exhibit 3].

On cross-examination Ms. Marinaccio clarified that she did not pass the boy in order to make her turn into the bank - that is, he was standing further north on the eastern side of 376 of the driveway entrance she entered - and that she was approximately 50 feet away when she first saw him near the sidewalk and the grassy knoll. She could not say whether he had mounted his bicycle. She also could not recall whether when she saw him standing on the grass he was straddling his bicycle, or if he was holding it to his side. The various locations of the entrance to the recreation center, the bank, where the boy was standing, and the path her car took from Route 376 into the bank parking lot were marked on Exhibit MM, an aerial photograph.

Jill Stevenson, a life long Dutchess County resident and a resident of Hopewell Junction for 7 years at the time of the accident, was the driver of the vehicle that struck Anthony. She testified that on June 25, 2001 it was a beautiful sunny day, and she was driving her 1992 Ford Explorer with her eight (8) year old daughter Chloe seated in the rear passenger seat behind the driver. At "around noontime" that day, she was returning home from a friend's house on Creekside Drive - a local road intersecting directly with Route 376 south of the recreation center - and was driving northbound "not even a mile" on Route 376 when the accident occurred. [T-405-406].[FN1] [*3]

Asked to describe the area of "Hopewell Hamlet"generally, Ms. Stevenson said that in a northbound direction past the entrances to the recreation center and the bank on the eastern side of Route 376, and the intersection of Unity Street on the western side of Route 376, are several shopping areas. Just past the bank entrance on the eastern side of Route 376 is a driveway accessing a Cumberland Farms store, a pizzeria, and several other small retail stores. On the western side of Route 376 heading north, just past Unity Street, there are entrances to a CVS pharmacy and to a Grand Union plaza. Even further to the north State Route 376 comes to a "T"-intersection with State Route 82, and the two State roads overlap for awhile.

Ms. Stevenson was very familiar with the recreation center park, because she coached a team of cheerleaders that had their practices there, and would cheer at the football games held at the park in the Pop Warner program. Additionally, because the cheerleaders generally marched in the parade, she would go to the park on Community Day as well. She noted that she always drove to the recreation center, since her home was "a couple of miles" away. [T-417]. Because she did not walk in the area, she said she was not in a position to know whether there is a crosswalk anywhere in the Hamlet across Route 376. She said that during the parades there were police officers directing traffic, and that "[t]here's always police officers in Hopewell." [T-417].

On June 25, 2001, when Ms. Stevenson first observed Anthony "heading towards [her]

car . . . He came out from . . . near the . . . parking lot from the bank close to where the Cumberland Farms Plaza was . . . he came out from the side . . . he came out of nowhere and he was in the road, and I tried to stop as fast as I could." [T-418-419]. As best she could recall, Anthony was to her right in the road when she first saw him, and was riding his bicycle at the time of the impact. Although she could not say exactly how fast she was going, she ". . . wasn't going fast because it's a busy little Town, so . . . [she] was probably going less than the speed limit." [T-421]. The speed limit, she said, ". . . is between 30 and 40." [ibid.]. When she saw the boy's face to the right front passenger side of her car - she "slammed . . . [her] brakes on." [T-427]. She could not say that she "saw" the bicycle, and knew only that he was on a bike. The right front corner of the car came into contact with the boy on the bicycle. At impact, she saw the boy "rolled . . . onto the hood of the car a little bit and then rolled . . . off." [T-426]. When she depressed the brakes, the car ". . . came to a sudden stop . . . it didn't travel." [ibid.].

When Ms. Stevenson got out of her car, she was near a grassy area on the western side of Route 376 near the CVS where a series of mailboxes front the highway. She recalled her car coming to stop before the driveway to the CVS, and marked the location of the front of her vehicle at impact on a photograph taken looking southbound on Route 376. [See Exhibit 9]. On another photograph taken looking northbound on Route 376 the impact is also shown as toward the center of the northbound lane near the two center yellow lines separating north and southbound traffic. [See Exhibit 8].

Ms. Stevenson could not recall if there were any pedestrian crosswalks across Route 376 from the point of the recreation park north to the road's intersection with Route 82, but indicated her familiarity generally with pedestrian crossing warning signs, and the obligation to yield to pedestrian traffic in a crosswalk. Shown the photographs of the area of the impact she had identified earlier, [Exhibits 8 and 9], she confirmed that no painted crosswalks appear.

On cross-examination Ms. Stevenson clarified that at the point of impact, Route 376 is on a slight incline, and that her car was on the incline "coming down" at the time. [T-437]. Given [*4]how Anthony was in the road when she first saw him, Ms. Stevenson reiterated that "the only thing . . . [she] could do is hit the brakes." [T-439]. Additionally, she confirmed that even if there had been signs advising motorists of an upcoming entrance for the recreation center, she would not have noticed them, because as a life long resident, she knew there was a park coming up, knew where the opening to the park was, and knew ". . . to go slow through that area." [T-442]. She admitted that she did not recall exactly what her speed was, but knew she had been traveling slowly, and confirmed that she had not received any traffic summons or violations in connection with the operation of her car that day. She said that her ability to see down Route 376 as she approached the recreation center and past the access road was "very good," and noted again that she knew the entrance was "coming" and thus knew to slow down. [T-442-443].

On the larger, aerial photograph, Ms. Stevenson marked where the boy was when she first saw him on his bicycle - almost directly across from Unity Street a little further to the north from where Ms. Marinaccio had placed his location when standing - and also marked where her car was when she first saw him: the locations clearly a short distance from each other based upon her credible testimony. [See Exhibit MM].

George Carlo, Anthony's father, testified that on June 25, 2001 he was home from work. Julia Carlo had walked Deena and Joseph, two of the three younger children, to the recreation center in the morning. Prior to that day, Mr. Carlo had observed Anthony crossing Route 376 on many occasions, generally at the Unity Street point, because the boy's bus stop was on the eastern side of Route 376. He had never observed him not to look both ways. Mr. Carlo explained that the family was very accustomed to pedestrian crosswalks and their use, because of visits to family members in Manhattan and in the Bronx. Indeed, Anthony had been instructed that if a road had a crosswalk, he was to use the crosswalk. In their housing development, Mr. Carlo estimated that there were between 25 to 30 houses. They themselves had moved to Candy Lane in 1988 or 1989, shortly after they married. When asked if people from the neighborhood walked to the recreation park, he said "Yes. There was always a lot of people . . . it's close to the Town. I mean, you move into the area so you can walk to places." [T-479]. "People were always taking their kids out . . . The old what we call the walkers would always be out walking around going to the rec." [ibid.].

He thought the northbound lane of Route 376 near Unity street was wider than the southbound lane at that location. Although no lanes were marked, two cars might travel side by side there, particularly if a car was making a right hand turn into one of the commercial driveways, or a car was making a left hand turn into Unity Street. He also said there was no white fog line to delineate the right-most side of the northbound lane on the east side of Route 376.

In addition to the daily adult walkers and families crossing to use the recreational facilities, Mr. Carlo said that on other special occasions hordes of people would cross Route 376 from the west to the east side to attend special events, such as community day, or fireworks displays. Many people would park in the Grand Union plaza parking lot, and cross over to the east side of Route 376 for these special events.

Mr. Carlo never attended a town public meeting or wrote to any public officials or agencies about any issues of pedestrian safety in the accident area.

Jean Gunsch, a 26 year employee of the New York State Department of Transportation, testified regarding her assessment of the conditions in the area of the entrance to the East Fishkill [*5]Recreational Center relative to traffic engineering. She has held the title of Civil Engineer I, for a period of 15 years. She explained that this was the highest position she could qualify for because she did not possess a professional engineering degree. Her highest level of education was two years of college.

Describing her understanding of her job, she explained first that traffic engineering includes vehicular traffic, pedestrian traffic and bicycle traffic. She further explained that there are ". . . two aspects to traffic engineering. One is making the roads safer, and the other is making them more efficient." [T-44]. In her position, she worked on complaints made by the public, and responded to such complaints by, for example, replacing traffic signals, reducing speed limits or directing that brush be trimmed in a problem area. She had also been in a position to recommend crosswalk placements at various locations during her 15 year tenure.

In order to recommend a crosswalk at a given location, she explained that not only would there have to be an identified pattern of pedestrians crossing, there would also have to be a safe place to actually place the crosswalk, since it would be inadvisable to recommend that people cross the road at an unsafe location. If a recommendation for installation of a crosswalk were made, the request would be directed to the Maintenance Department, and an additional recommendation would be made for pedestrian crossing signs to be located near the crosswalk in order to alert motorists. A considerable number of people crossing at a given location would be necessary to render the location appropriate for a crosswalk. Upon questioning, she said that might mean 25 people crossing a State road on a daily basis, as opposed to one or two people per month. Additionally, an "engineering judgment" [T-50] as to the actual location of the crosswalk would have to be made as well. Crosswalks, she explained, ". . . are supposed to funnel pedestrians into one location, give them guidance of where . . . the best place to cross would be

. . ." [T-50]. Engineering considerations would include sight distance, sidewalks, driveways in the area, and the position of nearby intersections. With regard to sight distance for a particular location, the speeds of the cars on the roads plays a significant part she said, since, for example, a car traveling at 35 miles per hour would have a greater ability to stop than one traveling at 55 miles per hour.

Crosswalk studies, in her experience, did not generally include a traffic count, unlike a determination to put in a traffic signal. Indeed, if there were ". . . enough pedestrians . . . [to] warrant an actual traffic count, you might be looking for a pedestrian signal, not a crosswalk. For a pedestrian signal, you need a certain number of pedestrians, a crosswalk, you don't. A crosswalk is more engineering judgment." [T-57]. She testified that the Manual of Uniform Traffic Control Devices [hereafter MUTCD] would give guidance as to when a traffic signal would be needed.

As an investigator for the Dutchess County area for the DOT, a letter of complaint dated September 2, 1996 signed by a William Horveth of Hopewell Junction, concerning the recreation center and State Route 376 was routed to her. [See Exhibit 33]. Mr. Horveth did not include a full return address or any telephone number to enable Ms. Gunsch to contact him further. The letter is addressed to "Mr. Albert Bauman, Regional Director" at the Poughkeepsie office of the DOT and states: "I would like to call your attention to a dangerous situation concerning traffic on Route [*6]376, in the Town of East Fishkill, NYThe location is at the East Fishkill Recreation Center located in the Hamlet of Hopewell Junction.This Center is used by hundreds of children and adults on a daily basis. Naturally this results in a large volume of traffic entering and leaving the location.On numerous occasions, I have observed vehicles leaving the location without paying much attention to traffic approaching from the south on Route 376. Due to a bend in the Northbound roadway on 376, the operators of vehicles making right turns from the park, find it difficult to see traffic approaching from their left.There is a traffic sign on Route 376 some distance from the Park entrance indicating a turn in the roadway, however there is no sign indicating that there is an intersecting roadway.I would like to suggest that your office inspect the location with a view to placing two signs as follows:The first sign would be placed on Rt. 376, Northbound before the exit to the Recreation Area, indicating an intersection ahead.The second sign would be a FULL STOP sign at the exit of the Recreation Area.In the past there have been vehicular accidents at this location that were serious enough to require the use of the "Jaws of Life" tool to remove a person from a vehicle.Since most vehicles have children passengers, I'm sure that this is a very distracting factor to the driver, thereby adding to the problem . . ." [Exhibit 33].

Ms. Gunsch recalled that on July 9, 1997 she made a site visit to the location Mr. Horveth described, spent between one-half hour to forty-five minutes at the location, made a "freehand" drawing of the area that she later "prettied up", and recommended placement of a stop sign at the intersection of the access road to the recreation center and State Route 376. [T-73-74; Exhibit NN]. Her visit took place at approximately 11:00 a.m. on that day. She drove on part of the access road, but could not say whether she drove in only so far as to make a u-turn and pull back out, or if she drove all the way to the parking lot and back. She described the traffic on Route 376 - the only other road she examined that day - as ". . . an average amount of traffic for [a] State road in a relatively built up section of the Town . . ." [T-77]. She said that a vehicle stopped at the recreation center had a sight distance of approximately 800 feet in both a northerly and southerly direction down Route 376. Similarly, a car traveling on either north or southbound Route 376 would see the recreation center entrance at approximately 800 feet. These measurements were done, she said, using a calibration device in the car she was driving. She [*7]indicated that there was a "vertical crest" in the State roadway looking north to its intersection with Route 82 from the entrance to the recreation area.

Ms. Gunsch viewed Mr. Horveth's complaint letter as concerning a problem with vehicular traffic entering and exiting the recreation area, and consequently she did not examine the area in terms of pedestrian or bicycle safety. Moreover, during her onsite visit, nothing alerted her to any likelihood that many children would be walking or biking to the recreation area, nor was the entrance near any large housing complex or other location that might trigger her looking into the pedestrian traffic. She had not heard of the term "pedestrian generator" when asked by Claimant's counsel, and would only tentatively agree that a park with five baseball fields, a football field , a place to fish, a basketball court, a roller hockey court, and walking paths, would "maybe" generate pedestrians. She credibly explained that it would depend on ". . . where the closest concentration of would-be pedestrians live or would be coming from." [T-99]. She admitted she did not know if there were any housing developments down Unity Street or Furland Road - two roads that intersect with State Route 376 near the entrance to the recreation center - because she did not travel down those streets during her examination of the site. She also explained that despite the location of commercial areas on either side of Route 376 heading north in the vicinity of Unity Street and Route 82, these would not necessarily generate pedestrian traffic across Route 376. She said: "It's not the normal thing for people to cross a State highway to get from one commercial place to the other especially in a Town like East Fishkill . . . people use cars. People don't even want to . . . get out of their cars . . ." [T-101-102].

Ms. Gunsch had been to the site on one or two more occasions to take in a concert and a fireworks show. When she was there she "vaguely recalled" observing people parked across from the recreation area in the parking lots of the CVS and the Grand Union walking across Route 376 to go to the scheduled event. [T-104].

Referring to an accident report printout, Ms. Gunsch testified that between state road reference markers, 8201 1018 and 8201 1021 - a roughly 500 to 1500 foot distance along Route 376 in the area of the recreation center between Route 82 and 52 - there were 67 accidents in the period from January 1, 1997 through December 31, 1999. [Exhibit O]. For the period from January 1, 1997 through April 30, 1998 and May 1, 1998 through April 30, 2001, a total of 103 accidents are reported. [See Exhibits P and Q].

Additionally, she testified concerning traffic counts along the larger general area reported for the area between highway markers 8201 1014 and 8201 1043, referring to another computer printout. [Exhibit N]. This area would encompass the portion of Route 82 that overlaps with Route 376. In 1998 and 2001, 19,100 vehicles are counted; in 1995, 17,900 vehicles are counted; and in 1992, 16, 900 vehicles are counted. [See ibid].

Ms. Gunsch could not recall having seen a document entitled "Bicycle and Pedestrian Plan" which indicates it was prepared by the Poughkeepsie-Dutchess County Transportation Council [hereafter PDCTC], and has Albert J. Bauman, Regional Director for the DOT listed as a member of the Council, and other DOT employees listed as staff. [Exhibit 50].

On cross-examination, she confirmed that while 103 car accidents may have been recorded as having occurred within the 1500 foot area, this figure would include accidents at the intersection of Route 376 and Route 82, and that the report did not indicate what kinds of accidents these would be, including whether any pedestrians or bicyclists were involved. [T-152]. [*8]She also clarified that the area where there was a traffic count of 19,100 for the year 2001 did not include the recreation center, but rather encompassed the section where Route 376 and Route 82 "carry". [T-151]. Finally, Ms. Gunsch reiterated that Anthony's accident did not occur at the access road to the recreational facility: the area where she had conducted her study.

On re-direct Ms. Gunsch confirmed again that when she examined the site there was nothing that she observed that would trigger a pedestrian study. The complaint she was addressing spoke of vehicular traffic exiting the recreational center, and the problems associated with that, and nothing that she saw in the field during her on-site review hinted at a need for further study. At a minimum, she did not observe anyone crossing the State highway when she was there, and in her experience nothing else necessitated further review.

Thomas Weiner, a Civil Engineer III with the DOT since 1999 and a DOT employee since 1981, also testified. He indicated that he has a Bachelor's Degree in Civil Engineering. He currently works in the Planning and Program Management Group in the Poughkeepsie office, overseeing a small staff. Part of his job is attending public meetings for a variety of purposes, but primarily to gain information from the public.

Prior to testifying, he had scanned a copy of a Hopewell Hamlet Pedestrian Plan which he recalled having seen a final copy of at his office some years previously, because it contained some notes concerning a public meeting he had been asked to attend at his boss' direction on January 23, 2001 in the Hopewell Hamlet [T-192] regarding pedestrian traffic in the vicinity of Route 376 and Route 82 among other areas. Others at the meeting included members of the PDCTC and their consultants, the town Supervisor and members of the public. His understanding of the purpose of the meeting was that the PDCTC " . . . consultants had done some preliminary work and they were looking to gather input from the public as to their concerns regarding pedestrian activity in the area . . . " [T-193]. He could not recall whether there was a discussion of crosswalks on Route 376 in particular, nor could he recall if there were recommendations regarding a crosswalk in the area of the East Fishkill Recreation Center and on Route 376 in any commercial areas or near Unity Street. A final report was sent to the State "sometime in 2002," [T-207], because the State would have jurisdiction over some of the roads in the area where recommendations would be made.

Mr. Weiner explained that the PDCTC is a Metropolitan Transportation Organization or MPO, with its own staff and member agencies. The State DOT is one of the member agencies as are the towns and the county. He acknowledged that ". . . the DOT is the host for some MPO staff, but it's looked at as a separate entity even though their paychecks come from the State, they act independently. They work for the MPOs essentially." [T-211]. Although Mr. Weiner had "heard of" the 1996 Bicycle and Pedestrian Plan [Exhibit 50] propounded by the PDCTC, he did not recall ever having reviewed it, nor did he precisely know what its goal was when asked at trial, except that he assumed that a goal would be "to try to identify possible future projects to put onto the capital program." [T-212]. In later testimony Mr. Weiner further explained that an MPO is required for disbursing federal funds for transportation improvements according to federal law, and in some areas would also be responsible for transportation planning. Significantly, the Bicycle and Pedestrian Plan propounded by the PDCTC states in its introduction that it is ". . . intended to be used as a guide for bicycle and pedestrian project development, and as a resource for cities, towns, villages, and other groups to develop their own [*9]bicycle and pedestrian plans." [T-297; Exhibit 50, Page 1]. It also states that the PDCTC is "solely responsible for its content." [See ibid].

Mr. Weiner acknowledged that the plan had not been used by him as a guide while he worked for the DOT, but he also pointed out under additional questioning that any implementation of these suggestions would be more "generally" a function of a planning unit, and not a function of the Traffic and Safety Division that he was involved in. [T-300].

Mr. Weiner said that his department would also receive complaints from the general public concerning perceived problems, and review them. Like Ms. Gunsch, he indicated that he would not necessarily limit his review to the specific suggestions advanced by any complainant, but said that it would " . . . [depend] if there's any other information come to light that would cause you to look beyond what was requested." [T-214].

On cross-examination he explained that the purpose of the January 23, 2001 meeting he attended as he recalled "was to gather input from the public for the purpose of the study the County was conducting . . . the Hopewell Hamlet Pedestrian Plan . . ." [T-234]. Many issues and concerns were brought up at the meeting and, as he recalled, he did not receive any recommendations from the town at this January 23, 2001 meeting. The first time he saw any final product or recommendations resulting from this study was in April 2002, although it was likely that he saw a draft report a "couple [of] months before that." [T-236].

Mr. Weiner said that in his current role, he did not supervise engineers that investigated complaints received by the general public, although he had held investigatory positions himself in his 26 years with the DOT. He held the position of Civil Engineer II in the Traffic Engineering and Safety Group from 1987 to 1999, which involved such functions. He explained how complaints were addressed during his tenure. Generally, he said, written complaints were assigned to an investigator, who would go out and assess the nature of the complaint and determine how it should be handled. A field visit was almost always involved. If data concerning traffic or accident counts required review, it would be done. Typically, the individual investigator would determine what the nature of the complaint was, unless it was something unusual. He estimated that between 400 to 600 complaints per year were investigated during the years 1987 to 1999. There was always a backlog so that complaints were prioritized somewhat. "[W]hen the backlog became acute, . . . they'd be prioritized in terms of what we perceived to be safety problems based on the description of the complaint." [T-244].

On re-direct examination, the witness reviewed the complaint Ms. Gunsch investigated, but did not recall having seen it at the time it was received in 1996. [See Exhibit 33]. He also indicated that an investigation of accident history would not necessarily be triggered by Mr. Horveth's complaint. He explained that an accident history would not be requested simply to confirm the number of accidents requiring use of the "jaws of life" tool, but rather such a request would be to see whether there was any pattern to accidents at a particular site. Given the language of the complaint, however, he said ". . . [it] was specific enough that they identified it as being related to the limited sight distance." [T-264]. Mr. Weiner noted that the main follow-up system in place would be the continuous accident surveillance system identifying high accident locations. Additionally, a request could be made by an investigator to have accident surveillance updated for a particular location.

Mr. Weiner explained that defining a high accident location is ". . . technical, and [*10]essentially, it's a statistical determination that the accidents occurring at any particular spot exceed what you would normally expect to see, the average." [T-268]. What the average is, ". . . depends on the facility, whether it's a two-lane highway, whether it's in a city of a rural area, it varies." [id.]. When asked whether hearing that an area between mile marker 8201 1018, south of the recreation center entrance, and mile marker 8201 1021, north of the recreation entrance, had over 103 accidents during a four year period, would make him view the area as a high accident location, Mr. Weiner said: "It would depend on the volumes. It's basically comparing the accident rate for the location in question, comparing it to a Statewide average rate . . . [for the three-tenths of a mile]. It would be high, but I would suspect that it involved a major intersection." [T-268-269].

Asked if he would expect an investigating engineer who had received Mr. Horveth's complaint [Exhibit 33] to conduct any sort of a study for the installation of a pedestrian crosswalk, Mr. Weiner replied that he would not expect such a study. Indeed, as her supervising engineer, Mr. Weiner said that Ms. Gunsch's action in connection with the complaint - the installation of a stop sign - was appropriate action.

James Rapoli, a Civil Engineer II and Associate Transportation Analyst with the DOT for 15 years, testified very briefly about his tenure as the Bicycle and Pedestrian Coordinator from calendar year 2002 to ". . . the middle of . . . [2004]," and his predecessor's tenure as Bicycle and Pedestrian Coordinator [T-303]. Mr. Rapoli likened the coordinator position as assignment of responsibility akin to appointment as a project manager. No staff was appointed for the position, but rather it became one of his responsibilities in his region. He recalled looking at a bicycle route along Route 9, formulation of a bicycle route along Route 17, preparing maps of bicycle routes for the lower Hudson Valley, and working with local traffic safety boards to implement proposed safe routes to schools, the use of helmets and promoting bicycle education through local school resource officers. He assumed that his predecessor, Russell Robins, had largely the same type of responsibilities. Mr. Rapoli did not recall undertaking any projects concerning the town of Hopewell Junction or the Town of East Fishkill in 1996, did not recall any DOT announcements in 1996 or 1997 concerning any policies to improve access for bicycles and pedestrians on State routes throughout the region, nor did he recall any "specific" or "general" directives from Albert Bauman or anyone acting on the Regional Director's behalf with regard to making State roads more pedestrian and bicycle friendly. [T-306].

The now retired Town Supervisor for Hopewell Junction, Peter Idema III, testified concerning the local area and issues arising during the time he served from January 1, 1996 to December 31, 2005. He, too, confirmed that there are no pedestrian crosswalks across Route 376 in the pertinent areas. In addition to the recreational areas testified to by other witnesses, Mr. Idema reported that access to Town buildings and Gayhead Elementary School is gained via Entry Road, a road that intersects with Route 376 approximately three-quarters of a mile south of the entrance to the recreation center. Town Hall buildings, a fire station, and the public library may be accessed via Entry Road, as well as a road that runs behind Town Hall "that goes down to the Rec . . ." [T-315].

Mr. Idema confirmed that the recreation center attracts large numbers of children and families for activities both organized and casual throughout the year as well as even larger numbers for special events such as the Community day parade, and firework celebrations. For [*11]special events, he said that they would have some traffic control, with members of the Town of East Fishkill Police department assisting. He would not call it "directing traffic" per se, but said that ". . . we have police activity in the park to control what goes on in the park . . . if there was a high volume of traffic exiting, we may have a police officer directing traffic . . . [at] the park entrance, it's 376, to allow traffic to get out of the park." [T-333-334].

More generally, he said the park closes at 11 p.m. and that there are nighttime activities, such as a women's softball league, as well. The summer camp, he recalled, had increasing numbers of children participating since 1996, and that in summer, 2001, there might have been 300 children participating. He said during the afternoon pick-up period from camp they "would try to have an officer posted there so that people can get out of the Rec area after they pick up their children . . ." [T-334]. The morning drop off was not as challenging.

During his tenure as supervisor, the Hopewell Hamlet Pedestrian Plan was undertaken. In response to the question of when he had first heard of the plan, Mr. Idema said "we had a discussion with the County because we wanted to take some actions in the center of Town to make it a destination, rather than . . .[a place for] through traffic, and one of things we need[ed] to do was make it more walking friendly . . . " [T-336]. Part of the problem, he said, was an overabundance of curb cuts to gain entrance to various commercial areas along Route 376, making it difficult for pedestrians to walk along without constantly turning about to determine whether traffic was turning in or out. One of the reasons the town wanted to commission a study was to determine a way of making it "easier and safer for the pedestrians to get around Hopewell Hamlet" including crossing streets. [T-341]. He spoke to the PDCTC - which he referred to as "the County" during his testimony - and the study was funded by the Town of East Fishkill and Dutchess County. He understood that the State of New York was a member of the PDCTC, and also supplied some funding. He himself was a permanent voting member of the PDCTC, ". . . [f]or the last four or five years . . ." of his term in office, and had started out as a rotating voting member along with other Town Supervisors when he first took office. He remembered the suggestion for coming up with a plan as having occurred in 1999 or 2000, with final completion of the study occurring approximately two (2) years later. The study, he later said, is dated 2002.

After refreshing his recollection, Mr. Idema recalled the public meeting on January 23, 2001 attended by Mr. Weiner, and reported that he recalled that there was "at least one representative" from "New York State." [T-347]. He recalled that there was some discussion of the need for a crosswalk ". . . somewhere to get people to be able to get up to the entrance to the Rec Park across Route 376 . . . one was needed somewhere in that vicinity." [T-349]. His understanding was that because it was a State road, they would need State approval to do anything. He did not recall any specific comments during the course of the meeting by Mr. Weiner, or directed to Mr. Weiner.

Mr. Idema recalled a discussion on the crosswalks that might be needed to allow people to get across Route 376, but did not remember if there were distinctions drawn for traffic, or for rollerbladers, skateboarders or the bicyclist that might cross. He did not recall discussion of the width of Route 376, and primarily remembered that ". . . the general discussion for a crosswalk at that location had more to do with the number of turning vehicles than it did with anything . . ." [T-351]. He agreed that this would create pedestrian issues as well. Finally, he said that there was discussion of the placement of signs generally, as well as speed limit enforcement. His [*12]understanding with regard to a crosswalk across a State road was that the Town could not do it.

On cross-examination Mr. Idema confirmed that Route 376 remained essentially the same throughout his ten years in office, except, perhaps, that it might have been repaved. The structure, however, remained the same. Mr. Idema's testimony was somewhat equivocal with regard to whether the State of New York installed the sidewalks in front of the strip malls on Route 376, indeed he ultimately conceded that he had no direct knowledge as to whether the sidewalks near the recreation center, the bank and ending at the Cumberland Farms entrance were installed by the State of New York.

Mr. Idema did not recall any kind of pedestrian count or study having been done in the general area of the recreation center on Route 376. He recalled that the initial idea of conducting a formal independent study came from the PDCTC. He also confirmed that there were various other studies conducted in this area, and said ". . . we were in the process of updating our master plan, so there were a lot of studies that were going on . . ." [T-364]. To his recollection, before the final plan was written, no preliminary portions or components of the plan were implemented. Mr. Idema also confirmed that many issues were discussed at the January 23, 2001 meeting, other than the recreational area. Additionally, the recreational center is used not just by residents of the Hamlet, but people in other towns of Dutchess County, albeit the primary use is intended for residents of the Town of East Fishkill.

Finally, Mr. Idema agreed that he had a "working relationship" with the DOT during his tenure as Town Supervisor, in a town having a population of approximately 23,000 to 25,000 people in 2001, and admitted that at no time prior to June 25, 2001 did he make a request in writing for the installation of a crosswalk on Route 376. As far as he knew, none of the concepts discussed during the meeting of January 23, 2001 were ever implemented.

Roger Griemsmann, Resident Engineer for the DOT for 20 years, testified briefly to the effect that the time frame for installing a crosswalk - at least in the early 1990's which was the most recent time his department installed them rather than outside contractors - would depend on how much other work was on order, and the urgency of the request. "It could be done within a week, it might wait a month or two." [T-383]. If signs were involved as well, it might take a little longer, because signs are "extra work to put up, but it would all be handled together." [T-383-384]. Additionally, the residency would have an inventory of fairly standard signs for replacement purposes.

On cross-examination it was explained that many maintenance divisions of DOT stopped installing crosswalks because materials were changing from traffic paint to thermal plastic markings or epoxy paint, and most were installed after the early 1990's by contract because of the necessity for certain specialized equipment to use those new materials. Mr. Griemsmann further explained that the region at issue covers seven counties of New York State, and because State contracts are involved a bidding process is implicated. That is why installing a crosswalk could take a month.

The only other witness to testify on Claimants' direct case besides Joseph Conte, a professional hired to make a videotape of the area of Route 376 near the recreation center that was admitted in evidence to show the road configuration [See Exhibit 46], was Lance E. Robson, Claimants' expert. Mr. Robson, although a licensed engineer, primarily had experience with water resource projects, and his only road construction experience was in the Philippines. He had [*13]never designed, or supervised construction or built a public highway in the United States. He testified that he had never been in a position that required that he determine from an engineering standpoint where a crosswalk should be installed on a public highway, although he had made determinations on whether installation of other kinds of traffic control devices were necessary. Notably, based upon his direct testimony, this experience in installing traffic control devices appears to have been confined to construction work zones within "little street systems" in the hydro-electric and water resource facilities the civil engineering firm he first worked for was involved in constructing. [T-610].He described himself as a "civil engineer, specializing in highway engineering and crash reconstruction" [T-607], engaging in forensic work in his own firm since 1987.

Mr. Robson first visited the site of the accident in October 2002, and recalled visiting the site two more times. While there, he inspected Route 376 from Route 52 north to Route 82, the recreation center, as well as Claimants' residential neighborhood. He opined that the recreation center was a pedestrian generator, meaning ". . . it's a place where you can expect pedestrians to come from or go to . . . and . . . wanted to see the extent of it." [T-613]. He noted that the northbound lane of Route 376 in the area of Unity Street is wider than a single lane, and that there are no pavement markings to delineate the lanes.

South of the entrance to the recreation center on Route 376, the posted speed limit changes from 45 miles per hour to 35 miles per hour, and there "is some sort of village designation." He said a driver coming north does not see the balance of the hamlet because of the vertical crest in the road until past the recreation center. He also thought that the sight distance for the driver stopped at the recreation center trying to turn onto Route 376 was "excellent" in both directions, for "several hundred feet." [T-623]. He opined that the vertical crest to the north of the recreation center driveway was close enough to the driveway that ". . . you look to your right down into the hamlet . . . you're basically looking right down the road." [T-624].

Testifying with reference to a DOT traffic volume report dated May 12, 2004 reporting selected years, Mr. Robson said that these numbers represent traffic counts in the area of the recreation center. Mr. Robson testified that the report said that in 1993, there were 7,550 vehicles per day; in 1996 there were 8,300 vehicles per day; in 1999 there were 9,850 vehicles per day. [See Exhibit N]. The Court notes that the section of the report read from covers mile markers commencing at Route 52's intersection with Route 376, and ending at the intersection of Route 82 with Route 376. [See ibid.].

After reciting these traffic counts, Mr. Robson opined that "[a] crosswalk should have been provided at the recreation center driveway" because of what he viewed as pedestrian generators on both sides of Route 376, particularly because children would be attracted to the center. [T-626-627]. He also opined that it should be located at the recreation center driveway, rather than at Unity Street, because ". . . the sight distance is better . . . the pavement width is narrower, . . . the traffic movements are much easier to discern, and there . . .[are fewer] driveways . . . there's less traffic moving in different directions." [T-627].

Mr. Robson recited the primary reasons for providing crosswalks, and thus concentrating pedestrian movement into predictable patterns: Reduction of conflicts; warning to cars of potential pedestrian presence; directing pedestrians to a safer place to cross; and creating ". . . a [*14]positive assignment of right [of] way." [T-628]. He thought these benefits could be achieved by a crosswalk across Route 376 at the recreation center driveway. He also recommended warning signs to vehicular traffic of an upcoming pedestrian crossing.

After being given a recitation of most of the operative facts of the accident, Mr. Robson expansively opined that had there been a crosswalk at the recreation center driveway the accident would not have occurred; that the failure to provide a crosswalk and pedestrian crossing signs was not reasonable and prudent; and that the crosswalk should have been put in when the recreation center was built, as he understood it, ". . . in the . . . [1970's]." He also said, "If you have a crosswalk present, people tend to use it . . ." [T-637-638].

Notably, Mr. Robson did not testify concerning any prior accident history during his direct examination.

On cross-examination, he opined that he ". . . wouldn't think it would be necessary to have an accident history . . ." with regard to pedestrian safety. [T-683]. Although he had indicated he was an expert in pedestrian and bicycle accident reconstruction, he did not do a reconstruction in this case. He explained that he did not do a reconstruction because he thought that the ". . . amount of data that was collected by the police was very, very small - - very limited, no scene photos, no measurements of anything . . . and . . . even the testimony that was there as to what happened, and how it happened was all conflicting. So there wasn't really any basis for a reconstruction." [T-684]. He then remarked when asked what "conflicts" there were, and from what witnesses such conflicts emanated, "As an example, . . . the speed of the car, there's different people with different speeds of the car. Different people have different recollections as to whether impact was by the front of the car or the side of the car. People have different recollections as to how he was moving or not moving prior to impact. There just isn't any information there about - - upon which to do any kind of reconstruction." [T-687].

Mr. Robson also agreed that sight distance is always limited. He said sight distance at the recreation drive is limited by a horizontal curve; at Unity Street, it is limited by a vertical curve. He maintained, however, that while sight distance for drivers coming upon Unity Street was adequate given the posted speed of 35 mile per hour, the sight distance was not adequate for a pedestrian trying to cross. The driver has to be able to stop his car. The pedestrian has to be able to get across the whole roadway.

Mr. Robson was not familiar with New York State Vehicle and Traffic Law rules applicable to bicyclists [See Vehicle and Traffic Law §§1231, 1234] to the effect that they must follow the rules of the road for vehicles, nor was he familiar with definitions of bicycle, pedestrian and crosswalk or associated provisions. [See Vehicle and Traffic Law §§102,110, 130]. He was aware that the MUTCD defines pedestrian as someone on foot or in a wheelchair. He thought, however, based upon some unspecified "technical literature" concerning whether child bicyclists should be permitted on sidewalks or not, that the term pedestrian should include child bicyclist. [T-696-697].

Supplied with the information that Anthony would have been instructed by his parents to use the crosswalk , Mr. Robson felt that although there are differences between adults and children, a child so instructed would use a crosswalk were one provided. He would not concede that it was speculative to assume that Anthony would have used a crosswalk, saying ". . . that's why I say it's to a reasonable degree of you know, certainty that it would occur, whether it would [*15]occur ten times out of ten, or four times out of ten, I don't know. But the indication is, behavior would be modified, people will use safe facilities, including children . . . " [T-700].

Later on during his cross-examination he acknowledged that signs are more useful for drivers unfamiliar with the area, but insisted that the crosswalks together with the signs also had utility for someone familiar with the area because the pedestrians would be channeled to the appropriate spot to cross, and draw attention to their presence. Mr. Robson acknowledged that the drop in speed in the northbound lane of Route 376 occurred approximately three-tenths of a mile before his suggested crosswalk placement, acknowledged that the area was more rural looking to an unfamiliar driver because of the dense trees just in the area of Route 376 before the recreation center, and that there was no sidewalk on the western side of Route 376 where he thought the crosswalk should go, but nonetheless maintained that it would be sound engineering judgment to place a crosswalk at the edge of this rural area by the recreation center entrance.

Mr. Robson also conceded that he himself had not performed any pedestrian counts during his review and inspection of the location.

Although MUTCD does not have specific mandatory requirements for placement of crosswalks, and they are left to engineering judgment, there are three conditions suggested in MUTCD for installation of a crosswalk. Mr. Robson said "[t]he first one is, substantial pedestrian movement. The second one is where it is desirable to indicate to pedestrians the proper place to cross. And the third one is at intersections where conflict between vehicular and pedestrian movements is a factor." [T-710].

Mr. Robson said that his basis for finding substantial pedestrian movement was that the Town used the local police to assist during special events and during some camp hours, and conceded that he did not know whether at the time that this accident occurred there was the substantial movement he described, and, more significantly, conceded that he did not have any idea of the daily travel of people walking back and forth across Route 376, ". . . but . . . just

. . . [had] an idea that it's substantial . . . [n]ot on a daily basis, but sometimes, once in a while." [T-714]. Thereafter, Mr. Robson essentially admitted that he would design a roadway based upon conditions that occur from time-to-time.

With regard to his opinion that the crosswalk should have been put in when the recreation center was built in the 1970's, Mr. Robson conceded he had no idea when the housing development was built, nor did he know when the commercial development along Route 376 occurred, and admitted that his opinion concerning the crosswalk was based upon the assumption that the residential area Claimants lived in was there when the recreation center was built.

Mr. Robson also said that as the owner and developer of the Recreational park, the Town of East Fishkill should have notified the State that they needed a safe place for the pedestrian to cross, and they should have requested a crosswalk be installed.[FN2]

These were all of the witnesses who testified on Claimants' direct case. After the Defendant's witnesses finished testifying, George Carlo was called again to offer a foundation for certain undisclosed photographs Claimants offered, but other than Mr. Carlo, and the various documentary and photographic exhibits, the foregoing was the Claimants' direct case. [*16]

Without reciting chapter and verse of the testimony offered by the witnesses Defendant called, two more elderly eyewitness to the accident, Vern Jackson and his sister Dorothea J. Loos, should be mentioned, as well as the testimony of Chief of Police Brian Nichols and Defendant's expert, Nicholas Pucino.

Mr. Jackson was driving out of the Grand Union plaza parking lot to make a right turn onto south bound Route 376 around noon on June 25, 2001. Dorothea was in the back passenger seat behind Mr. Jackson. Just after he made his turn onto southbound Route 376, he "saw . . . a youth just appeared to come down off the bank right, you know into - - it startled me because I realized there was going to be an accident there. You know, it just didn't look like he was going to stop. He just had his head right down and riding . . . his bike." [T-810]. Mr. Jackson clarified that he first saw the boy riding on his bicycle coming from the bank parking lot with his head facing down, not looking one way or the other, ". . . down off the embankment . . . right toward the road . . ." [T-814]. As the child was coming toward the road, ". . . he wasn't a right angle turn so he would see the car, it was more like a 45 or a 60-degree angle [away from the vehicle]

. . . so that he wasn't looking toward the car. He would have been looking straight across." [T-815]. He described the speed of the bicycle as ". . . too fast to control his bicycle . . . " [T-819], as he came up over the embankment and onto the roadway. Mr. Jackson also observed that he did not have a bicycle helmet on.

In terms of the vehicle which struck the boy, Mr. Jackson recalled that the first time he observed it was ". . . simultaneously, . . . as I looked up that way, it was . . . it didn't look good." [T-816]. He estimated that the car was traveling ". . . maybe 20 miles an hour, 25 at - - you know, if you move through Town, unless somebody's really reckless, why - - she just appeared to be not speeding, I would say." [T-819]. Thereafter, the car hit the bicycle in the front as he saw it, and ". . . the boy flew slightly through the air and hit the road." [T-817].

Dorothea J. Loos essentially confirmed Mr. Jackson's view of the accident in the portions of her deposition testimony read into the record. [See Exhibit PP]. She, too, ". . . saw a boy coming kind of down exactly in front of the other car without looking at all . . ." [T-860-861]. She first saw him ". . . coming over . . . an embankment, or some kind of like - - whatever was on the side of the road. I don't know if there is a sidewalk there or not . . . I did not see him before

. . . [he came over that embankment]. It was like he was suddenly there . . . " [T-867].

Brian Nichols, Chief of Police of the Town of East Fishkill, described the traffic as light to moderate on June 25, 2001, as he traveled in his unmarked police car northbound on Route 376 around noontime. The traffic was slowing down - he himself had slowed down to approximately 30 miles per hour as he entered the Hamlet near Furland Road - and then came to a stop. He stopped a little past the entrance to the bank and saw a minivan stopped partially in the southbound lane of Route 376, but facing northward. When he exited his vehicle, he saw the child lying in the road, and the bicycle ". . . on the road off towards the side of the road a little bit." [T-773]. He did not observe any skid marks, and could see that the minivan was stopped only a short distance from where the boy was on the road.

Chief Nichols also said that he had been with the police department for twenty (20) years on the day of the accident and had been chief of police for approximately nine (9) years at the time. During his time with the department, he was not aware of any automobile accident involving bicycles and automobiles on Route 376 in the vicinity of the recreation center. [*17]

On cross-examination, the witness was reminded of one, 1998, accident involving a car and a bicycle, wherein a car pulled out of the bank parking lot suddenly, and a bicyclist traveling northbound on Route 376 collided with the car because she was unable to stop. [See Exhibit Q-1].

Finally, Nicholas Pucino, a licensed professional engineer now primarily working as a consultant engineer in the investigation and analysis of highway related accidents, and with a depth of experience in highway planning, design, construction, and safety through his career with the DOT, testified as the State's expert engineer. He conducted an investigation of the case, including reviews of the Department of Motor Vehicles reports of accident history, the PDCTC Bicycle and Pedestrian Plan; highway plans, traffic volume reports, depositions of eyewitnesses, among other documents, and made three on-site visits to examine the area, taking photographs and making a videotape to show the road configuration. [See Exhibits S through JJ; Exhibit LL]. He also indicated that he lived in the area, and had used the park himself to take walks with his wife.

Mr. Pucino said that Route 376 was built in 1915, was reconstructed to some degree in 1963, and resurfaced in 1974. [See Exhibits 35, 36, 37]. When he measured for sight distance, in the area between the entrance to the recreational park and the northbound side of Route 376 across from its intersection with Unity Street, he found them adequate. At Unity Street, he said, the sight distance was limited not by the vertical crest but rather by the horizontal curvature of the road that would limit the view of someone on the east side to 450 feet. This 450 feet was still adequate in his view. Indeed, he evaluated the area in terms of a car traveling at both 30 and 35 miles per hour, and a pedestrian walking "at the normal pedestrian rate of four feet per second." [T-925].

However, he opined that sight distance is not relevant in this case because Anthony was not looking in the direction of Ms. Stevenson's car when he was struck, as stated by the eyewitnesses to this accident.

His review of the accident history within the four-tenths of a mile of the accident site at mile markers 8201 1018 to 1021 showed no similar accidents - a view that is confirmed by the evidence adduced at trial. He found no accidents with bicycles, except the one already mentioned [See Exhibit Q-1], and no accidents involving pedestrians.

He said that there was no record of the State ever having installed any of the sidewalks along the eastern side of Route 376 past the recreation center up to the Cumberland Farms driveway entrance. "They wouldn't install them under a resurfacing project. And they wouldn't install them in front of one property . . . [because] that would be favoritism for a particular party

. . . isolated from all others in the area. The State is just not in the sidewalk business except as part of a project." [T-923].

During his investigation, the only mention of complaints from the public concerning the subject area were at a public meeting ". . . in which someone raised the issue of a crosswalk in the vicinity of . . . [the] recreation area . . . I saw something in that in some kind of public meeting, but not a letter written to the Department requesting something or identifying a problem." [T-929].

Mr. Pucino pointed out that MUTCD does not have a specific requirement concerning the installation of pedestrian crossing warning signs. He said that MUTCD indicates that there are [*18]signs available for use, if there is determination that a "substantial number of pedestrians, and where pedestrian traffic is normally not expected." [T-933]. He said the utility of such signage, however - although a reminder even to motorists who are familiar with an area - is nonetheless more pronounced for drivers who are unfamiliar with an area. He thought that primarily local drivers used this route, because it is not a ". . . major through route." [T-935]. Moreover, he thought other cues of pedestrian activity were present. When entering the Hamlet the speed was reduced, and just after the trees lining the road up to the recreation center driveway, the presence of commercial areas is clearly visible. Again, however, given the description of the accident by the driver and by Mr. Jackson he found that signs would not have changed her behavior in any event.

Additionally, he found that installing a crosswalk was not mandated by MUTCD under the facts of this case, and he further disagreed with Mr. Robson about installing a crosswalk at the recreation center driveway proper. Mr. Pucino thought the location inadvisable because motorists would be traveling at higher speeds when first entering the hamlet area and would only just be adjusting to the more obviously settled area, the sight distance at the recreation center was decreased at that location more than at Unity Street, and there was no sidewalk on the western side of Route 376 that would allow pedestrians a place to walk other than the shoulder after they crossed.

Finally, Mr. Pucino opined that the presence of a crosswalk at either location, was irrelevant, because it is "pure speculation that painting of a crosswalk would particularly change the boy's behavior, apparently being advised that crosswalks are the best place to cross. I mean, clearly . . . I would have expected [him] to have been instructed to look both ways before you cross, and he didn't do that . . . I don't think you could properly leap to that conclusion . . ." [T-953].

DISCUSSION AND CONCLUSION

The State has a non-delegable duty to adequately design, construct and maintain its roads and highways in a reasonably safe condition to prevent foreseeable injury, but is not an insurer of the safety of its roads. See Friedman v State of New York, 67 NY2d 271 (1986). The duty includes ". . . taking into account such factors as existing traffic conditions, terrain and pedestrians . . . (citation omitted) [and] the design and maintenance of traffic control devices and warning signs at intersections of the roadways and crosswalks under its control . . .(citations omitted)." Greenspan v State of New York, Claim No. 98992, UID #2002-019-027 (October 7, 2002, Lebous, J.). No liability may attach unless the ascribed negligence in maintaining the roadway is a proximate cause of the accident (Hearn v State of New York, 157 AD2d 883(3d Dept 1990), lv denied 75 NY2d 710 (1990). In fulfilling its obligation the State may assume that those using the roads will use reasonable care and obey the law governing the operation of motor vehicles. See Tomassi v Town of Union, 46 NY2d 91 (1978).[FN3]

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 (1960), rearg denied 8 NY2d 934 (1960). Liability attaches only when the design was evolved without an adequate study or lacks [*19]reasonable basis. 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, supra, at 284; Olson v State of New York, 139 AD2d 713, 715 (2d Dept 1988). Failing to correct a known hazardous design could render the State liable based upon that continuing duty to review plans in light of actual operation. See Atkinson v County of Oneida, 77 AD2d 257, 261 (4th Dept 1980), appeal after remand, 89 AD2d 826, affd, 59 NY2d 840 (1983).

Whatever kind or degree of negligence is asserted, however, it is always the Claimant's burden to show that the State was negligent in the first instance, and that the negligence claimed is a proximate cause of a claimant's injuries. Jordan v State of New York, 249 AD2d 279 (2d Dept 1998); Hearn v State of New York, supra, 885. While Claimant is not obligated ". . . to rule out all plausible variables and factors that could have caused or contributed to the accident

. . . [or] positively exclude every other possible cause of the accident . . . the proof must render those other causes sufficiently remote' or technical' to enable the . . . [fact finder] to reach its verdict based not upon speculation, but upon the logical inferences to be drawn from the evidence (citation omitted)." Gayle v City of New York, 92 NY2d 936 (1998); See also Burton v State of New York, 283 AD2d 875 (3d Dept 2001).

Significantly, no liability may attach unless Claimant establishes that the State had actual or constructive notice of a dangerous condition and failed to take reasonable measures to correct the condition. Brooks v New York State Thruway Auth., 73 AD2d 767, 768 (3d Dept 1979), affd 51 NY2d 892 (1980).

In this case, Claimants have failed to meet their burden of establishing that the Defendant had actual or constructive notice of the existence of a dangerous condition, and have failed to establish that any purported breach of duty on the State's part was a substantial contributing factor - or a proximate cause - of Anthony's injuries.

A history of prior similar accidents may establish that a given location is dangerous, but it is the Claimants' burden to establish such history and similarity. Lack of such proof suggests that the highway is reasonably safe for use by those exercising reasonable care. See Dahl v State of New York, Claim No. 108480, UID# 2006-036-006 (June 30, 2006, Schweitzer, J.), compare Kang-Kim v City of New York, 29 AD3d 57 (1st Dept 2006) ; McDonald v State of New York, 307 AD2d 687 (3d Dept 2003).

There was absolutely no evidence of prior relevant accident history at this intersection or any other evidence presented allowing the court to infer that the State had any notice that there was a dangerous intersection, either at the recreation center entrance, or at the point at which Anthony crossed the street near the intersection of Route 376 and Unity Street. The only complaint emanating from the public directly addressed to the DOT is Mr. Horveth's 1996 complaint concerning vehicular traffic at the recreational center entrance: a location different from the situs of the accident. Based upon that complaint, Ms. Gunsch performed an adequate review of the recreation center entrance and implemented the appropriate action: installing a stop sign.

Although town residents and town officials were in the best position to know what the day-to-day traffic and pedestrian flow for the area might be, no one in a position to catch the ear of State authorities took any action to point out potential hazards and suggest changes.

The guidebook suggesting creation of bicycle and pedestrian friendly areas published by [*20]the PDCTC, for the entire Dutchess County area and partially funded by State monies, is just that: an advisory guidebook. [Exhibit 50]. It is an optimistic series of proposals for creating bicycle and pedestrian zones in an increasingly vehicular world, but it is not binding on planning actions taken by the State of New York. The discussion of it by witnesses, and the proposals in the Hamlet of Hopewell Junction that were apparently reduced to a writing that was not even complete until after the subject accident, and was never submitted in evidence, are interesting, but academic.

Indeed, the Court does not even reach the issue of determining whether Anthony's injuries arose out of a highway plan resulting from inadequate study, and therefore not afforded qualified immunity, because of the lack of notice, and the additional absence of any nexus between the asserted negligence claimed and the accident.

This is not a case for the experts. This is a fact case. Several eyewitnesses to the happening of this accident confirm that Anthony entered the roadway while riding on his bicycle without checking for oncoming traffic. The driver of the car that struck Anthony was driving slowly - either at or below the posted speed limit, there is no meaningful "conflict" in the testimony as asserted by Claimants' expert - and did not see him in order to take evasive maneuvers until he was directly in front of her when she slammed on the brakes. She could not avoid striking the boy, and came to a stop almost immediately. There were no skid marks: attesting to a fairly quick stop.

Where, as here, both Anthony Carlo and Jill Stevenson were familiar with the area of Unity Street and Route 376, Anthony failed to look where he was going - as attested to by independent witnesses - and nonetheless proceeded on his bicycle across the State highway, any purported negligence on the part of the State in failing to install a crosswalk or pedestrian signs was not the proximate cause of this accident. See Rose v State of New York, 19 AD3d 680 (2d Dept 2005); Martinez v County of Suffolk, 17 AD3d 643 (2d Dept 2005); Sinski v State of New York, 2 AD3d 517 (2d Dept 2003); Atkinson v County of Oneida, supra; Greenspan v State of New York, supra. It is pure speculation on the part of Claimants' expert to opine that had a crosswalk been painted at the recreation center entrance - a location of arguably unsound engineering judgment - Anthony would have used the crosswalk and not been injured. Kang-Kim v City of New York, supra, at 60.

While it is distressing that an error of judgment resulted in injuries to this young man, the State is nonetheless not liable for this unfortunate accident.

All trial motions not otherwise disposed of are hereby denied and Claim Number 104937 is hereby dismissed.

Let judgment be entered accordingly.

Appendices: Footnotes

Footnote 1: References to the transcript of the trial are indicated as "T-" with the page number.

Footnote 2:Indeed, this was a similar opinion to the one he expressed in a sworn affidavit submitted in companion litigation against parties other than the State of New York. [See Exhibit OO].

Footnote 3: ". . . So long as a highway may be said to be reasonably safe for people who obey the rules of the road, the duty imposed upon the municipality is satisfied . . . ", at 97.