Guzov v State of New York

[*1] Guzov v State of New York 2006 NY Slip Op 52625(U) [21 Misc 3d 1111(A)] Decided on June 28, 2006 Ct Cl Lack, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 28, 2006
Ct Cl

Debra Guzov, Individually, and as the Administrator of the ESTATE OF ROBERT RUBINO, Deceased, Claimant,

against

The State of New York, Defendant.



106357



APPEARANCES:

For Claimant:

Law Office of Michael J. Regan

By: Michael J. Regan, Esq.

For Defendant:

Eliot Spitzer, New York State Attorney General

By: John M. Shields, Assistant Attorney General

James J. Lack, J.

This claim arises from the alleged wrongful death of Dr. Robert Rubino, (hereinafter "decedent"), and was filed by Debra Guzov, individually, and as Administrator of the Estate of Robert Rubino, deceased, (hereinafter "claimant") as the result of an accident on August 5, 2001. On January 18 and 20, 2006, a bifurcated trial was held on the issue of liability.

Decedent was involved in a one car motor vehicle accident while traveling westbound on Montauk Highway (State Highway Route 27A) in front of 715 Montauk Highway, Bay Shore, New York. For an unknown reason, decedent's vehicle left the roadway and came into contact with large decorative rocks which had been placed adjacent and parallel to Montauk Highway at that address. It was stipulated at trial that the rocks were located in the State's right-of-way. According to claimant, the defendant, the State of New York (hereinafter "State"), was negligent in its ownership, operation, and maintenance of the accident site. The action is for the wrongful death of decedent.The police accident report (claimant's Exhibit 15) indicates that the speed limit on that portion of Montauk Highway is 50 m.p.h. However, it is clear from the evidence that this entry in the report is in error and the speed limit for westbound traffic on Montauk Highway is 40 m.p.h. and that eastbound traffic and westbound traffic at this location each have a different designated speed limit. Directly across the street from the accident location, facing traffic heading eastbound, is a speed limit sign indicating 50 m.p.h. as the speed limit (defendant's Exhibit K). However, at the intersection just east of the accident site, there is a 40 m.p.h. speed limit sign for westbound traffic (defendant's Exhibits A and L). The Court finds therefore that the speed limit westbound at the accident site is 40 m.p.h.

Joyce Stracuzza testified on behalf of claimant. Stracuzza was the owner of the property at [*2]the accident location for approximately twenty years until October, 2000. In 1985, Stracuzza placed the rocks in the location where they remained on the date of decedent's accident. She was under the impression that the property was hers and placed the rocks there for aesthetic purposes (T. p. 29).[FN1] During the time the witness owned the property, she maintained the area. After putting the rocks there, the witness recalls two accidents in front of her property. Neither accident caused significant personal injury and the witness was unable to give dates for the accidents.

Steve Coulon, an accident reconstructionist, testified next for claimant. He identified photo logs from 1986 which showed the rocks in front of 715 Montauk Highway (claimant's Exhibits 14A - 14 H). In comparing Exhibit 14 to the police photographs of the accident (claimant's Exhibit 16), the witness described the difference in the road markings from 1986 to the date of the accident. In 1986 Montauk Highway was a four lane highway with two lanes in each direction. By the date of the accident, Montauk Highway was configured with one lane in each direction and a turning lane in the middle. Coulon stated that the frontage of 715 Montauk Highway was 369 feet along the highway. According to the witness, the distance between the edge of the roadway to the fence is 20 feet (T. pp. 49 -50). Approximately 10 feet of the area is a paved shoulder and the other half a gravel area in front of the fence (T. p. 50). Within the gravel area, there were 25 large rocks along the fence. He gave no measurement from the edge of the roadway to the rocks.

The witness testified a "clear zone" is needed alongside a roadway[FN2]. Further, he testified that a clear zone for an area with a 50 m.p.h. zone would be 20 feet.[FN3]

On his direct examination, the witness gave his opinion as to the events leading to the accident. The witness testified that there were no skid marks or "yaw" marks on the road surface.[FN4] According to the witness, decedent's vehicle left the roadway and came into contact with a rock which caused the car to tumble westward. The vehicle stayed in this "clear zone" while coming into contact with two other rocks and the fence (T. p. 69). The vehicle then struck a telephone pole which it broke, and continued westward another 20 feet. From beginning to end, it was estimated that the vehicle traveled 160 feet.

The expert opined decedent was doing a minimum of 50 m.p.h. at the beginning of his tumble (T. p. 67). He stated that if the speed was "much, much higher" than 60 m.p.h. then decedent would have ended up much further down the road. The estimate of speed was based on the distance traveled and the velocity of approximately 40 m.p.h. necessary on impact with the pole in order to break it (T. p. 67). However, on cross-examination, Coulon stated that the 40 m.p.h. was basically a supposition for purposes of trying to identify the initial speed of the vehicle leaving the roadway. Additionally, on cross-examination, Coulon admitted that when a tire goes from a hard surface to a softer surface, such as gravel, the tires could cause the vehicle to roll over (T. pp. 82-83), but not [*3]if the wheels are pointed straight ahead.

Claimant also called Paul Streb, an engineer, to testify. According to Streb, Montauk Highway was repaved and restriped at some point during the 90's. The witness referred to this as a reconstruction of the roadway which would require engineers and surveyors to inspect the roadway and remove any hazardous objects within the clear zone of the road. This witness also testified that the speed limit in this area was 50 m.p.h. and, thus required a 20 foot clear zone.[FN5] The witness stated that the rocks would have created a hazardous condition in the clear zone. The witness opined that these rocks, in the clear zone, caused decedent's accident (T. p. 194).

On cross-examination, the witness stated the rocks were approximately 5 feet from the edge of the shoulder or 15 feet from the roadway (T. p. 203). The witness admitted that he was not familiar with the highway's history. He was unaware when the road was constructed or if the width of the road was changed during the repavement. Upon reviewing the highway design manual, Streb testified that a roadway with a speed limit of 40 m.p.h. needed a clear zone of 14 to 16 feet. In addition to the foregoing, the witness testified that the average annual daily traffic count for this location was 6,000 vehicles per day. He was not aware of any accidents in this location, other than the subject accident.

Defendant presented two witnesses, Robert Seyfried, an accident reconstructionist, and Dianne Delgado, an engineer with the New York State Department of Transportation.

Seyfried testified that when the vehicle left the roadway it went into a side slip, so that there was no head-on collision with the rocks. Rather, the front tire, as it hit the gravel, would have slipped and caused the vehicle to tumble. In Seyfried's opinion, the tumbling done by the vehicle was mostly done on the sides of the vehicle, basing his opinion on the damage to the vehicle. In this scenario, he stated, it is also likely that no yaw marks would have been made.

Seyfried opined that decedent's vehicle was traveling somewhere between 54 to 66 m.p.h. when it hit the rocks. He estimates the vehicle was traveling at a faster rate of speed on the roadway and it lost some speed as it went to the side (T. p. 112).

The cross-examination of Seyfried is best described as a sparring match with counsel trying to discredit the witness's testimony based upon what seemed to be the generally accepted speed limit of 50 m.p.h. in this area and the lack of yaw marks. Indeed, after his testimony, claimant moved to strike the testimony as being against the weight of the evidence.

The motion to strike the testimony is denied. Defendant's expert, as previously found by the Court, correctly identified the speed limit as 40 m.p.h. in the direction decedent's vehicle was traveling. In addition, the Court finds this expert's theory to be as credible as claimant's theory as to the initial tumbling of the vehicle. Claimant's expert envisions the vehicle leaving the roadway by drifting off the road, almost parallel to the travel portion. Defendant's expert envisions the vehicle taking a steeper angle toward the fence line and when the left front tire hit the gravel, the vehicle was caused to tumble.

In reviewing photographs which showed the different configurations and pavements on the road, Delgado classified the project as a simple project that would not be classified as reconstruction in the Highway Design Manual (T. p. 251). For such project, a review of clear zones along the roadway is not required according to Delgado. The witness testified that in the five years prior to this accident there was one accident to the west of this location and one accident to the east, but none at this location. Neither of the other accidents was similar to this accident, according to the witness. [*4]Delgado supported the proposition that the speed limit was 40 m.p.h. in the westbound area of decedent's accident.

The State has a non-delegable duty to maintain its roads and highways in a reasonably safe condition. However, the State is not the insurer of the roads' safety (Tomassi v Town of Union, 46 NY2d 91). "In maintaining older highways, the State is not obliged to undertake expensive reconstruction simply because highway safety design standards have changed since the original construction" (Van De Bogart v State of New York, 133 AD2d 974, 976). This "vintage highway rule" is not complete relief of liability on defendant's behalf. In Gerwitz v State of New York, Ct Cl, Corbett, J., Claim No. 100439, the Court held:

There are two circumstances when the State may not rely upon the vintage highway rule. First, when it engages in a project that involves a reconstruction of the road, as opposed to a repaving of the road. . .The second circumstance which eviscerates reliance upon the vintage highway rule is notice of a dangerous condition. . .

This Court does not agree with claimant's expert that the work done on the roadway was a reconstruction of the highway. The Court accepts Delgado's testimony that the work was merely repaving and relining, and not reconstruction. The width of the roadway did not change and the repositioning of the road markings, albeit a reconfiguration, is incidental and necessary to the repaving of the roadway.

The Court notes that the rocks were not in the roadway or on the shoulder of the road but in the State's right of way. The question is whether the State's duty to maintain the roadway even extends to the right-of-way area. In Young v New York Thruway Authority, 76 AD2d 834, 835, the Court held, "[u]nder well-settled law, the defendant has no duty to maintain its entire right- of-way in a condition safe for travel by either motorists or pedestrians (Kinne v State of New York, 8 AD2d 903, affd 8 NY2d 1068; accord Ellis v State of New York, 16 AD2d 727, affd 12 NY2d 770; Tomassi v Town of Union, 46 NY2d 91)."

Further, the Court finds that claimant has failed to prove that the rocks constituted a dangerous condition. Claimant showed that the rocks were in front of the accident location for approximately sixteen years prior to the accident. According to claimant's expert, the location had an average annual daily traffic count of 6,000 vehicles. During that time claimant has shown no accident history but for two uncorroborated accidents which were not caused by the rocks, nor did the rocks aggravate the accidents.

Even if this Court were to find that the repaving was a reconstruction project, defendant would still be within the guidelines of the New York State Manual for Highway Design. According to defendant's expert, the manual recommends a clear zone from the edge of the roadway of 14 to 16 feet in a 40 m.p.h. zone. In the instant situation, there was 15 feet from the edge of the roadway to the rocks, according to claimant's expert.

As to the accident itself, claimant's vehicle left the roadway through no negligence of defendant. The autopsy revealed no intoxicants or other medical condition with respect to the decedent, and a safety inspection revealed nothing wrong with the vehicle. There are only two possibilities left which would explain the car leaving the road. Either decedent purposely left the road in this manner, which the Court discounts completely, or the accident was caused by driver [*5]error/inattention.[FN6]

As previously detailed, the expert reconstructionists differ as to the exact happening of the initial tumbling of the vehicle. To hold defendant liable, the Court would have to hold that the rocks constituted a dangerous condition and claimant proved that its version of the accident was the only credible version of the event. However, the accident is just as likely to have been caused in the manner described by defendant's expert, depending on the angle the vehicle left the roadway. With the lack of physical evidence prior to the initial tumble, it is impossible to determine the angle of the vehicle.

If it is likely that an accident occurred from causes other than the State's negligence, then the inference defendant's negligence caused the accident may not be drawn (Johnson v State of New York, 27 AD3d 1061).

Based on the foregoing, the Court finds for defendant and dismisses the Claim. All motions not specifically ruled upon are denied.

Let judgment be entered accordingly. Footnotes

Footnote 1:The letter T will refer to the trial transcript.

Footnote 2:A clear zone is an area in which an errant driver may recover.

Footnote 3:This witness used the police report to obtain the 50 m.p.h. zone initially. His visual inspection of the area confirmed the 50 m.p.h. to him. However, as noted above, it is clear that the speed limit of 50 m.p.h. is only for eastbound traffic. The speed limit for westbound traffic is 40 m.p.h.

Footnote 4:A yaw mark is made when the vehicle moves in a side to side fashion as in a fishtail.

Footnote 5:This was based on the New York State Highway Design Manual.

Footnote 6:Given claimant's testimony that decedent, an emergency room physician, had been up for almost 24 hours at the time of the accident and had been working at two hospitals performing emergency procedures, it is likely that fatigue set in and decedent fell asleep.