O'Dell v State of New York

[*1] O'Dell v State of New York 2012 NY Slip Op 51155(U) Decided on April 4, 2012 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 4, 2012
Ct Cl

Edward O'Dell as Guardian of JAYNE W. BAKER-O'DELL, a person declared incapacitated pursuant to Mental Hygiene Law Section 81.02 (b), Claimant(s)

against

The State of New York, Defendant(s)



115921



Claimant's attorney: CHRISTOPHER J. CIACCIO, ESQ.

Defendant's attorney: HON. ERIC T. SCHNEIDERMAN

Attorney General of the State of New York

BY: THOMAS G. RAMSAY, ESQ.

Assistant Attorney General

Philip J. Patti, J.

Edward O'Dell, who is the husband of claimant Jayne Baker-O'Dell (hereinafter "Claimant"; collectively referred to as "Claimants"), an individual who has been declared incapacitated pursuant to Mental Hygiene Law § 81.02 (b), brings this claim individually and as Claimant's guardian. Claimants assert two causes of action: the first cause of action sounds in negligence, specifically with regard to Defendant's alleged failure to provide sidewalks or other proper pedestrian facilities at the intersection of Fourth Section Road (Route 31) and Commencement Drive in the Town of Sweden, New York, where Claimant sustained her injuries after being struck by a motor vehicle; the second cause of action is Edward O'Dell's derivative claim for his loss of Claimant's society, companionship, and services. This trial was bifurcated, and the liability portion of the trial was held before me in Rochester on November 7 and 9, 2011.

The incident that led to the instant claim was brief, but undeniably tragic. At approximately 7:21 p.m. on February 24, 2007, Claimant was struck by a motor vehicle that was driven by Darlene Lund while Claimant was walking in the right-hand turn lane on the north side of Route 31 at its intersection with Commencement Drive. The parties disagree over two key facts with regard to this accident: 1) whether any safe pedestrian facility, whether it be a sidewalk or a clearly delineated shoulder, was provided at the intersection of Route 31 and Commencement Drive; and 2) whether Claimant was walking westbound with traffic, which would be in violation of Vehicle and Traffic Law § 1156 (b), at the time that she was struck. In [*2]any case, Claimant was severely injured in the accident and was subsequently taken to Strong Memorial Hospital in Rochester, where she has remained, in a coma, ever since.

FACT WITNESSES:

Edward O'Dell testified that, on February 24, 2007, Claimant left their house at 7141 Fourth Section Road at approximately 5:00 or 5:30 p.m. to go shopping, and she chose to walk. Their house is located on the south side of Route 31, approximately one-half mile west of the intersection with Commencement Drive and approximately three-quarters to one mile away from Wegmans. Edward recalled that it was a cold evening without precipitation, and that Claimant wore a dark coat when she left the house. He did not know what Claimant did after she left the house; the next he heard from her was when he learned of the accident and went to Strong Memorial Hospital to see Claimant, at which point she was no longer responsive.

Edward testified that Claimant often walked along Route 31 and that she liked to go on walks; for example, she chose to walk that evening even though she had access to a vehicle. He could not say if Claimant was coming from or going to Wegmans when she was struck by Lund's car, as she sometimes would change her mind and walk back to the store after having already been there. Edward was not aware if Claimant had any prior conflicts with motor vehicles when she went out on walks.

Darlene Lund testified that, on the evening of February 24, 2007, she was traveling westbound on her way home after stopping at the Tim Horton's near the Wegmans plaza on Route 31. Lund, a resident of the nearby Town of Clarkson for approximately 20 years, described Route 31 as having one lane in each direction before reaching the intersection with Commencement Drive, at which point there is a right-hand turn lane for westbound drivers proceeding to make the turn onto Commencement Drive. Lund testified that she reached a speed of approximately 40 miles per hour (M.P.H.) before she slowed in preparation of making the right-hand turn onto Commencement Drive, which provides a short cut to her home in Clarkson. She described the conditions as dark, but without any precipitation, and also testified that her headlights were on. As Lund proceeded into the right-hand turn lane, she saw and then made contact with Claimant. Lund testified that she first saw Claimant standing in the middle of the turn lane, facing away from her, and not moving in any particular direction. Claimant then "turned to look over her left shoulder" (Trial Recording of November 7, 2011, at 10:29:22); all Lund recalled seeing was Claimant's face. Lund clarified that Claimant turned her head over her left shoulder, at which point Lund could see a profile of Claimant's face. Lund testified that she yanked the car to the left, hoping to miss Claimant, but was obviously unable to do so. She parked her car a few car lengths away from where she made impact with Claimant and went to look for Claimant, eventually finding her "a little ways off the road" (Trial Recording of November 7, 2011, at 10:30:16). Lund testified that she believed that the accident occurred around 10:00 p.m. and denied that it took place closer to 7:00 p.m., but agreed that it took place during the evening.

Crucially, while Lund was unable to testify which way Claimant's body faced when she came upon her in the right-hand turn lane, she testified consistently that Claimant looked back at her with her head turned over her left shoulder, facing south. Lund testified that, while she could not recall the position of Claimant's body, the one thing she definitely recalled seeing was Claimant's face just before she hit her. [*3]

Deputy Christopher Lockwood of the Monroe County Sheriff's Department, testified that, at approximately 7:21 p.m. on February 24, 2007, he responded to a 911 report of an accident at the intersection of Route 31 and Commencement Drive. Upon his arrival at the scene, he reported the accident to other units and went to render aid to the pedestrian who was struck by Lund's car, a woman he later came to learn was Claimant. When he arrived at the scene, Claimant was laying in the snowbank on the north side of Route 31 near the westbound right-hand turn lane. Deputy Lockwood's accident report (Exhibit 51) contained Lund's account of what happened that night. Deputy Lockwood's report reads that Lund was "traveling westbound on [Route 31] slowing in traffic in the right turn lane to make a right turn on Commencement Drive. [Lund] states she then noticed [Claimant] walking near the center of the right turn lane and swerved to avoid hitting [Claimant], but struck them [sic] with front right passenger side of her car. [Lund] states she saw [Claimant] hit her windshield and fall to the side of the road" (Exhibit 51). Deputy Lockwood reported that Claimant was not responsive when he arrived, and he rendered aid until emergency vehicles arrived.

On cross-examination, Deputy Lockwood testified that he knew Claimant by sight because "she walked a lot" (Trial Recording of November 7, 2011, at 9:56:36), and he had seen her walking along Route 31 on other occasions. Claimant was wearing "darker clothes" (Trial Recording of November 7, 2011, at 9:56:52) when he came upon her on the night of the accident. Deputy Lockwood also testified that, in his accident report, a contributing factor was designated as "pedestrian error or confusion" (see Exhibits 51 and AA). He explained that he made this designation because, due to the weather conditions, the lighting of the road in that area, and walking in the travel lane where Claimant was walking, it seemed that a person should not have been walking in that vicinity. On re-direct examination, however, Deputy Lockwood further testified that there was no safe lane where Claimant could have walked without being in harm's way, because the snow on the side of the right-hand turn lane was approximately 6 to 12 inches deep.

Monroe County Sheriff's Deputy Daniel Luffman was the technician on the scene on February 24, 2007, and he arrived at 7:50 p.m. Deputy Luffman's Technical Services Report was admitted into evidence as Claimant's Exhibit 52, and he testified largely to the facts as set forth in that report. Approximately 110 feet east of Commencement Drive, on the right-hand shoulder of the westbound turn lane, Deputy Luffman observed an area in the snow bank that appeared to have been "significantly" disturbed, which was where Deputy Lockwood indicated that Claimant was laying after she was struck by Lund's car. Also in that area was a plastic Wegmans bag and a Wegmans receipt, which was dated February 24, 2007 at 6:37 p.m. Lund's car was parked in the turn lane approximately 93 feet west of this area, and it had damage on the front passenger side that Deputy Luffman described as being consistent with the car having struck a pedestrian. Deputy Luffman further noted that "[b]ased upon the position of physical injuries to the victim (rear), and the fact that the Wegmans store is east of the scene, it is probable that the victim was walking westbound, with her back to approaching westbound traffic" (Exhibit 52, at 2). In his report, Deputy Luffman also surmised that Claimant's dark clothing was a contributing factor to the accident.

One of the key issues in this trial, of course, is the design and construction of the intersection of Route 31 and Commencement Drive and the alleged lack of a pedestrian facility [*4]on the north side of Route 31 at that intersection. Stephen Beauvais, an analyst with the New York State Department of Transportation (NYSDOT), was the Project Manager of the "Brockport University Access Road/Park and Ride/Route 31 Improvement Project" (hereinafter the "Park and Ride Project"). Beauvais was involved through the design and construction phases; as Project Manager, he coordinated the Park and Ride Project to make sure that it was reviewed for proper highway design, engineering, and highway maintenance.

Briefly, the Park and Ride Project was conceived as a joint venture between a number of entities: the State University of New York (SUNY) at Brockport, the Brockport Central School District (BCSD), the Rochester Genesee Regional Transportation Authority (RGRTA), the Village of Brockport, and the Town of Sweden. Prior to the Park and Ride Project, the area north of Route 31 where Commencement Drive is now located was generally open space that was owned by SUNY, with the SUNY Brockport campus located approximately three-quarters of a mile north of Route 31. There were multiple goals for the project — both SUNY Brockport and the BCSD would have an additional, safe, signalized intersection for vehicle access to their respective schools to complement the existing access from Route 19; RGRTA would install a Park and Ride facility with sufficient parking for commuters, as well as access for pedestrians and bicyclists; the Village of Brockport would relieve congestion on Route 19 with the addition of the new access road to SUNY Brockport and the BCSD schools as well as the Park and Ride; and the Village of Sweden would gain improvements along the section of Route 31 where Commencement Drive and the Park and Ride were to be installed. With respect to SUNY Brockport traffic, Beauvais testified that it was anticipated that somewhere between 25 and 35 percent of SUNY students would use the Commencement Drive access road instead of the existing entrance on Route 19. It was anticipated that "hundreds" of buses and other vehicles would regularly use the new signaled intersection along Route 31 (Exhibit 43, at 28). SUNY was initially charged with a significant portion of the funding for the access road, although the engineers for the project, the Sear-Brown Group, were paid by SUNY, the BCSD, and RGRTA. Initial planning and design for the Park and Ride Project began in 1993. The scope of the project area along Route 31 was approximately from the beginning of the left-hand turn lane approaching from the west side of Route 31 to the beginning of the right-hand turn lane approaching from the east side of Route 31. Beauvais testified that the Park and Ride Project encompassed approximately 600-700 feet along Route 31.

Beauvais testified that NYSDOT began its review of Sear-Brown's highway design plans on 3/31/95, noting that Sear-Brown submitted design plans and reports on many occasions between the commencement of the Park and Ride Project in 1993 and when construction began in 1996. The "design plan review" that Beauvais oversaw during that time involved the process of reviewing each set of proposed plans until there was a final set of approved design plans; after each submission, he would review the plans as drawn up, make suggestions for proposed revisions, and send them back to Sear-Brown. Beauvais testified that the Park and Ride Project always included a westbound right-hand turn lane from Route 31 onto Commencement Drive, and that the preliminary plans for the project included a sidewalk on the north side of Route 31, within the project limits. This sidewalk would be separated from the right-hand turn lane with curbs, which would pick up from approximately the start of the right-hand turn lane, which also denoted the end of the shouldered area on the north side of Route 31. Beauvais did not recall any [*5]public demand for sidewalks to be included within the project area, but sidewalks were included in the preliminary plans at the request of NYSDOT regional landscape architect Edward Olinger (Exhibit 43, at 6). These sidewalks would not have connected with the existing sidewalks near the Wegmans plaza, which are located approximately one-third to one-half of a mile east of the project area. Instead, the existing shoulder would have been available for pedestrian traffic in the area between the sidewalks in the project area and the sidewalks near the Wegmans plaza.

This preliminary plan to install a sidewalk was abandoned, however, as circumstances changed around the funding for the project. As noted above, SUNY originally indicated that it would pay for a substantial portion of the cost of the access road. Beauvais testified that in 1995, however, NYSDOT was informed by officials from SUNY that they could no longer participate in the funding for Commencement Drive (see Exhibit C). Consequently, NYSDOT Regional Director Lew Gurley and Regional Planning and Program Director Karl Horn determined that NYSDOT should fully fund the project but look for cost savings. Beauvais recalled that reducing the depth of the pavement section that was built in the project area was one such significant saving. It was also determined, to the best of Beauvais' recollection, that the sidewalk north of Route 31 adjacent to the right-hand turn lane, as well as some other landscaping elements, were eliminated as another way to cut the cost of the Park and Ride Project.

Beauvais explained that his understanding of applicable State law is that NYSDOT is permitted to pay for sidewalks to be installed adjacent to State roads but will not pay for maintenance of those sidewalks (see also Exhibit 56, at 2), and that it was common practice for NYSDOT to install sidewalks as part of a project and turn over the maintenance of those sidewalks to another entity. Beauvais further testified that he was not aware of any discussions regarding maintenance of the proposed sidewalks by either SUNY or the Town of Sweden; the decision to remove the sidewalks from the Park and Ride Project was, to his understanding, a decision based on project costs and not future maintenance. Ultimately, although the sidewalk was removed from the Park and Ride Project, the final design for the project included a 14' wide right-hand turn lane with an adjacent curb but no sidewalks. The existing shoulder in the area of the right-hand turn lane was eliminated, and Beauvais could not recall if a continued shoulder adjacent to the turn lane was ever considered as an alternative, despite the fact that the estimated cost of installing a shoulder adjacent to the turn lane was estimated to cost $4,816.18 less than the installation of the curb (Exhibit 50). Beauvais testified that, ultimately, the Park and Ride Project came in under budget.

Beauvais was asked to refer to several sections within the 1986 and 1995 versions of the NYSDOT Highway Design Manual (HDM) that would have been applicable to the design of the Park and Ride Project. The HDM, Beauvais explained, is a book that provides guidance and standards that are relied upon in highway design. It is produced and regularly updated by NYSDOT. Beauvais testified that Chapter 18 of the 1986 version of the HDM, entitled "Facilities For Pedestrians and Bicyclists" (Exhibit 46), and Chapter 3 of the 1995 version of the HDM, entitled "Typical Sections" (Exhibits 47 and 55), were applicable to the Park and Ride Project.

Chapter 3 contains definitions of a number of typical sections, including the definitions of "shoulder" (the "[p]ortion of the roadway contiguous with the traveled way primarily for accommodation of stopped vehicles for emergency use. [Also, preferred location for bicycle [*6]traffic using roadway.]") and "traveled way" (the "[p]ortion of roadway for movement of vehicles, exclusive of shoulders") (Exhibit 47, at 1). It also notes that, with regard to shoulder delineation, "[g]enerally, the boundaries of travel lanes warrant clear delineation" (Exhibit 55, at 3). With regard to sidewalk separation, Chapter 3 of the HDM states that "[w]here sidewalks are warranted, non-mountable curbs should usually be provided to delineate and help separate vehicular from pedestrian traffic" (Exhibit 55, at 4). The presence of non-mountable curbs "is meant to discourage the mingling of vehicular and pedestrian traffic" (Exhibit 55, at 4). Chapter 3 also addresses lane additions and widenings, and provides that "[o]nce it has been determined that a project requires lane widening or additions, the designer must develop typical sections which adequately address, among other concerns, mobility, the roadside design considerations discussed in Chapter 10, and the bicycle and pedestrian concerns discussed in Chapter 18" (Exhibit 55, at 5).

The aforementioned bicycle and pedestrian concerns discussed in Chapter 18 begin with a determination of the appropriate pedestrian and bicycle facilities for a particular area (Exhibit 46, at 18-3). The factors that should be considered in this assessment include: (1) existing and expected land use patterns and generators of pedestrian and bicycle traffic; (2) existing and anticipated pedestrian and bicyclist characteristics; (3) existing site accommodations; (4) existing local governmental and/or regional transportation plans which identify existing or proposed bicycle facilities; (5) pedestrian and bicycle accident history; and (6) existing site characteristics affecting pedestrian and bicyclist use (Exhibit 46, at 18-4). "Generators", which are part of the first factor for assessment, include but are not limited to: major employment centers, schools, parks, shopping centers, residential neighborhoods, medical centers, colleges and universities, bus stops, transit stations, and recreation areas (Exhibit 46, at 18-4). Beauvais acknowledged that, within a short distance of the Park and Ride Project, there is a university, schools, an apartment complex, shopping areas, and a Park and Ride facility. Despite the presence of those pedestrian and bicyclist generators, Beauvais testified that there were no warrants in Chapter 18 requiring sidewalks in that area.

With respect to the right-hand turn lane itself, Beauvais testified that the full width of the lane is 14' between the curb and the adjacent travel lane and that it is comparable to a "wide" turn lane, which can be a minimum of 10' wide. While the turn lane does not contain a shoulder, it does not need one as it is a "shared lane." Beauvais admitted, however, that he would be hesitant to share the lane with a bus if he were in the lane as a pedestrian or on a bicycle.

EXPERT WITNESSES:

Claimant's expert witness, John Serth, Jr., P.E., is a professional engineer who specializes in highway transportation. Serth testified that he reviewed the as-built record plans for the Park and Ride Project, the NYSDOT file for the Park and Ride Project, applicable portions of the HDM, photographs of the intersection and turn lane from both before and after the Park and Ride Project, and the affidavits submitted by Defendant's witnesses. He also visited the site on one occasion.

Serth opined that, based upon his review of the aforementioned materials, the pedestrian facility that existed prior to the Park and Ride Project, the shoulder, was eliminated by the project, "apparently inadvertently" (Trial Recording of November 7, 2011, at 11:51:56). He reviewed five NYSDOT photo log photographs that were taken in the westbound lane of Route [*7]31 on August 31, 1994 in the area where the intersection of Commencement Drive was to be installed (Exhibits 4-8). The photos depict Route 31, with one approximately 12' lane in each direction and an approximately 6' wide shoulder on each side of the highway, with a white line separating the travel lane from the shoulder. There was no turn lane at this point. Referring to the HDM, Serth stated that the shoulder was the existing pedestrian facility in that area, and the painted white lines noted the separation from the travel lane in order to avoid collisions.

Serth testified that, after completion of the Park and Ride Project, Route 31 exists in substantially the same manner but also contains a widening just before Commencement Drive for the right-hand turn lane (see Exhibit 53, Photo #5). The shoulder was eliminated in that portion of the roadway, replaced by the turn lane and the adjacent curb. Referring to Exhibit 53, Photo #5, Serth noted that the white line that separates the traveled way from the paved shoulder of Route 31 stops at the beginning of the right-hand turn lane and leaves pedestrians with no safe area to walk — they face the choice of either walking in the grass or in the turn lane. In the wintertime, as was the situation here, there would not always be a grass area to walk on either, and there could be snow instead. Serth noted that the right-hand turn lane starts narrow — approximately 6' wide — and tapers out as far as 14' wide, which is, in his opinion, a 12' lane with a 2' curb offset and no shoulder. The curb offset, Serth explained, is intended for traffic, not pedestrians.

Serth testified that, upon his review of the record plans, it was evident that a pedestrian facility was considered, in the form of a sidewalk. While Serth believed that it would not have made sense to have the sidewalk extend the entire length of Route 31, it would have been logical to have a sidewalk adjacent to the curbed lane, which no longer had a shoulder in place, to connect to the shoulder that commenced just after the curb ended. This would provide a continuous, safe pedestrian facility. Serth noted the curb cut and painted crosswalk from east-to-west across Commencement Drive, with another curb cut on the opposite side (see Exhibit 53, Photos #10, 16, and 19), and testified that there is a logical termini at the shoulder, where the curb ends, and that a pedestrian could resume walking on the shoulder at that point. His review of the relevant materials indicated that the sidewalk was eliminated because NYSDOT did not want to spend the money to build the sidewalk, and that it was eliminated without understanding that the sidewalk was there to go with the curbed areas to complete the pedestrian facility. Serth testified that it would have been okay for NYSDOT to not put in any sidewalks; instead, they could have not included the curbed areas and reinstalled the shoulder, which in any case would have saved more money than leaving the curbs in place.

In coming to his opinion, Serth also relied upon Chapter 18 of the HDM, specifically Section 18.06.02, which states that "[w]henever a State highway is being constructed, reconstructed or rehabilitated where pedestrian traffic exists or is anticipated, the designer should provide suitable space and surface within the right-of-way for safe pedestrian circulation. Often, this can be accomplished by providing suitably sized paved shoulders" (Exhibit 46, at 18-5). Serth testified that the Park and Ride Project clearly anticipated pedestrian traffic, as demonstrated by the existence of the curbs and curb cuts as well as the crosswalk across Commencement Drive. Serth also addressed the definitions of "shoulder" and "traveled way" from Chapter 3 of the HDM, which I have already set forth above, in noting that the traveled way is an area exclusive of the shoulder. He also noted that there is no definition of a "turn lane" [*8]contained in the HDM.

With respect to the assertion in Defendant's expert disclosure that the 14' right-hand turn lane was a 10' lane with a 4' shoulder, Serth disagreed and referred to the record plans, which are clear that the right-hand turn lane was a 14' lane with no shoulder (Exhibit 48, at 2). Again, the shoulder is separated from the traveled way with a painted white line; there is no white line in the turn lane indicating the presence of a shoulder. Serth again referred to the record plans to note that there is no indication of a 10' lane with a 4' shoulder but, instead, simply a turn lane that tapers from 6' to 14' wide (Exhibit 48, at 2).

Serth further testified that, upon his review of the relevant documents, there was no indication that NYSDOT performed any engineering study on the effect of removing the shoulders and sidewalks in the area of the right-hand turn lane, despite the fact that there was clearly an expectation of pedestrian traffic in that area. He also testified that curbs, which are used in part to separate pedestrian and vehicle traffic (Exhibit 47, at 3), generally do not end up adjacent to a highway in the absence of a sidewalk.

Serth opined that, within a reasonable degree of engineering certainty, Defendant departed from good and normal engineering practice by failing to include any pedestrian facility, be it a sidewalk or a shoulder, in the area adjacent to the right-hand turn lane at the intersection of Route 31 and Commencement Drive, as it caused pedestrians in that area to be pushed out into traffic. Serth further opined, within a reasonable degree of engineering certainty, that Defendant's deviation from good and normal engineering design was the proximate cause of the accident. The broken-up shoulder and lack of a sidewalk caused Claimant to have to walk in the traveled way in the dark. Serth opined that this was a foreseeable consequence of removing the shoulder, because pedestrians are forced into the road where there are gaps in the pedestrian facility.

On cross examination, Serth clarified that he was not saying that a sidewalk was required to be built in that area, but that NYSDOT needed to provide some continuous pedestrian facility in that area to prevent a situation where pedestrians would be forced to walk in the road. A shoulder would have been sufficient, but once NYSDOT decided to put the curb in, Serth believed that there needed to be a sidewalk to go along with it.

Defendant's expert witness, Richard W. Lee, P.E., has been employed by NYSDOT since 1982, and is currently Acting Director of the Office of Design. Lee testified that he reviewed the record plans, photographs, relevant sections of the HDM, and the 1990 American Association of State Highway Transportation Officials "Green Book." Lee also visited the intersection on one occasion.

Lee opined, to a reasonable degree of engineering certainty, that the right-hand turn lane was built in accordance with the prevailing engineering standards of the time, and that it was a legitimate shared use facility for vehicles, bicycles, and pedestrians. The basis for this opinion is that it is a 14' lane where all that is required for that turn lane is a 10' lane; the additional 4' is available for the occasional use of pedestrians or bicyclists. With respect to whether sidewalks were required in that area, Lee testified that none of the sidewalk warrants set forth in Chapter 18 of the HDM were present for a "rural arterial" highway, like Route 31. This opinion was based on the number of driveways in the area of the intersection, and the distance between those driveways. [*9]

Lee did not agree with the notion that the presence of a curb in that area required the addition of a sidewalk, because Chapter 3 of the HDM provides other warrants for curbing beyond the separation of pedestrian and vehicular traffic. Those other warrants include drainage control, driveway access, reduction of maintenance, and right-of-way requirements (Exhibit 47, at 3).

With regard to the lack of any fog line in the turn lane, Lee testified that Chapter 18 of the HDM does not provide any requirement for fog line-striping until a lane exceeds 14' in width. When a width of greater than 14' is proposed, striping of the travel lane and/or bike lane is desirable to avoid the operation of two motor vehicles in one lane (see Exhibit 46, at 18-33). Lee explained that the reason for this is that, when a travel lane exceeds 14' in width, you do not want to give drivers the impression that there is more than one lane, so beyond a certain length, some sort of striping should be put in to make it totally clear that there is only one lane for vehicle traffic. Lee further testified that placing a fog line in an auxiliary lane, like the one at issue here, causes traffic to increase speed in that area, and also causes drivers to stay closer to the fog line, which may cause a vehicle to drift closer to the right side of the lane than if there was no fog line. Moreover, a fog line approaching an intersection that stops, instead of extending into the auxiliary lane, gives more information to a driver that there is something ahead. Lee stated that the factors for determining whether striping is necessary, with regard to pedestrians and bicyclists, are the width of the travel lane and what is trying to be accomplished with the stripe.

With respect to the existing curbs and curb cuts at the intersection of Commencement Drive, Lee testified that it was not unusual to have handicap access ramps placed at an intersection that does not contain sidewalks, as there is the possibility of sidewalks being installed in that area in the future, and NYSDOT is able to leave a clear area in the event that sidewalks are later installed.

Lee opined, to a reasonable degree of engineering certainty, that the intersection of Route 31 and Commencement Drive was reasonably safe for reasonably prudent drivers and pedestrians, on the bases that the facilities in that area met the highway design standards of the day, his own visit to the site, his observations of the reactions of traffic at the site, and his own experience walking through the intersection.

On cross examination, Lee testified that the opinions that were set forth in his affidavits were made prior to his ever visiting the intersection of Route 31 and Commencement Drive. He also acknowledged that his opinions were based on the information that Claimant was walking westbound with traffic along Route 31 at the time she was struck, and that his opinions may differ somewhat if it was shown that she was walking eastbound against traffic instead. Later, on re-direct examination, Lee clarified that the direction in which Claimant walked had no bearing on his opinion that the intersection was properly constructed in accordance with the prevailing standards of the day.

Lee acknowledged that the Park and Ride Project was required to adequately address the pedestrian concerns that are set forth in Chapter 18 of the HDM, and that factors to be considered and included in the project design reports included the specific traffic generators, such as schools, businesses, and bus stops, that Beauvais referred to in his testimony (see also Exhibit 46, at 18-4). Lee did not know if the engineers and designers involved in the Park and Ride Project came to any conclusion with respect to an increase in pedestrian traffic, but he [*10]acknowledged the presence of several generators in the area, including SUNY Brockport, the BCSD schools, residential neighborhoods, the Park and Ride, and the Wegmans shopping plaza. He did not agree that the presence of these generators warranted the installation of sidewalks. As there was no pedestrian traffic study in the reports, Lee did not agree that his assertion that there would be only "occasional" pedestrian traffic at that intersection was necessarily incorrect. Lee once again asserted that, because he did not believe that there was a high enough level of pedestrian traffic to warrant sidewalks in the area of the Park and Ride, the paved shoulder of 4' was sufficient for occasional use by pedestrians and bicyclists.

Lee also acknowledged that, while separating pedestrians and bicyclists from motor vehicle traffic will make for smoother movement of traffic and reduce accidents, the right-hand turn lane at issue here did not include any physical separation between motor vehicles and bicycle or pedestrian traffic. Later, on re-direct examination, Lee again asserted that the fog line provides no physical protection to a pedestrian and, rather, can cause drivers to drift further to the right. The original design plans, as previously discussed, called for a 14' right-hand turn lane with an adjacent sidewalk, the latter of which was later removed from the final project plans due to cost concerns. Lee testified that he was aware of the cost estimate from Sear-Brown that noted the greater cost to install the curb instead of retaining the shoulder.

Lee was asked about the section on Delineation of Shoulders in Chapter 3 of the HDM, which provides that "[g]enerally, the boundaries of travel lanes warrant clear delineation" (Exhibit 55, at 3). He explained that the rationale behind this recommendation is to keep cars in travel lanes without imposing on space for bicyclists or pedestrians. With regard to the subsection on Sidewalk Separation in Chapter 3, also discussed above by Beauvais, Lee testified that a "non-mountable" curb is one that a motor vehicle should not go up and over, although motor vehicles are able to do so anyway. The non-mountable curve serves mostly as a way of delineating and separating vehicular from pedestrian traffic.

Throughout the cross examination, Lee maintained that the right-hand turn lane did not require a fog line, referring to Sections 18.06 and 18.08 of Chapter 18 of the HDM. Section 18.06 addresses Facilities for Pedestrians, and Section 18.08 refers specifically to Facilities for Bicyclists. Section 18.06.07, which addresses the use and construction of shoulders, sets forth that, where sidewalks are not warranted, paved shoulders of no less than 4' wide are generally considered adequate for pedestrian traffic (Exhibit 46, at 18-13). Shoulders of greater than 4' in width are desirable and should be considered where one or more of the following conditions are present: a) motor vehicle speeds exceed 35 miles per hour b) the percentage of trucks, buses and recreational vehicles exceeds 5%; and c) bicycle use of the shoulder is more than occasional (Exhibit 46, at 18-13). Lee believed that the speed limit on that portion of Route 31 was 50 M.P.H.[FN1], but that people using the right-hand turn lane would be slowing down to make the turn and, thus, would not be driving that fast. He was not aware of the State conducting any study on [*11]the rate of speed for motor vehicles traveling in the right-hand turn lane. With respect to the percentage of trucks, buses and recreational on Route 31, Lee was also not aware if the State ever conducted any study. He did acknowledge that, certainly, school buses would use the right-hand turn lane in the morning and afternoon when children arrived at or left school. With respect to bicycle use on the shoulder, Lee acknowledged that there was anticipation that some bicyclists would access the Park and Ride, although he did not know how many bicyclists were anticipated. There is nothing in the record to indicate that NYSDOT ever considered building a shoulder of greater than 4' at the intersection of Route 31 and Commencement Drive.

Lee once again asserted that the 14' turn lane provided a 4' width that constituted a shoulder, and that the entire 14' lane provided "ample" space both for motor vehicles turning right onto Commencement Drive and pedestrians and bicyclists wanting to use the lane. Lee maintained that there was sufficient space for pedestrians or bicyclists even when buses passed through the turn lane. Lee further asserted that a "traveled way" was a travel lane that was intended for motor vehicle use only, and that any mixed use travel lane did not fall under the definition of a "traveled way."

ANALYSIS:

As an initial matter, Defendant urges that Claimants' motion to conform the pleadings to the proof, which was made at the close of all evidence at trial, should be denied. Defendant's objection to the motion, however, was heard at that time and I overruled that objection and granted the motion. Defendant has offered no basis to cause me to reconsider my decision, and so my decision to grant Claimants' motion stands.

The State owes a nondelegable duty to keep its roadways in a reasonably safe condition (see Friedman v State of New York, 67 NY2d 271). This duty is not limited to just vehicular traffic but also extends to pedestrians (see Sanford v State of New York, 94 AD2d 857). The State, however, is not an insurer of the safety of its roadways and the occurrence of an accident does not create a presumption of negligence (see Tomassi v Town of Union, 46 NY2d 91). To establish liability, Claimants must show that the State either created or had actual or constructive notice of a dangerous condition and failed to remedy it before that condition proximately caused Claimant's injuries (see Kuhland v City of New York, 81 AD3d 786; Meeker v State of New York, 17 Misc 2d 288 [Ct Cl 1959]).

In the area of highway planning and design, the State is afforded a limited or qualified immunity for its highway planning decisions (see Weiss v Fote, 7 NY2d 579). Liability may only be imposed where it is shown that the plan either evolved without an adequate study or lacked a reasonable basis (see id.).

There is no question here that Defendant was required to address the needs of pedestrians, as set forth in Section 18.06.02 of the HDM, in the design of the Park and Ride Project (see Exhibit 46, at 18-5). Defendant's expert witness, Richard Lee, also acknowledged this during the course of his testimony. The question, then, is whether the 14' right-hand turn lane, which replaced the existing pedestrian facility in that area, a paved shoulder, was an adequate pedestrian facility. I now find that it was not, and that the design of the intersection of Route 31 and Commencement Drive was negligent.

For their part, Claimants elicited persuasive and authoritative testimony from their expert witness, John Serth. Serth explained that, while NYSDOT was not required to go ahead with the [*12]plan to install a sidewalk at the intersection of Route 31 and Commencement Drive, they were required to install some pedestrian facility in that area once the existing facility, the shoulder, was eliminated by the right-hand turn lane. Serth further explained that the 14' turn lane was not, as urged by Defendant's expert, a 10' lane with a 4' shoulder, but rather a 12' turn lane with a 2' curb offset. My review of the record plans confirms Serth's opinion — it is clearly noted that the right-hand turn lane was designed as a 14' lane with no shoulder (Exhibit 48, at 2). The record plans display two alternatives for the right-hand turn lane; the first alternative is for a shoulder section, with a 12' westbound travel lane, a right-hand turn lane of up to 6' in width, and a 6' shoulder; the second alternative, which was the actual plan used, is for a curbed section, with the 6' to 14' right-hand turn lane, the curb, and then a graded area for a future sidewalk (Exhibit 48, at 2). While both proposed plans show a shoulder along the eastbound travel lane, the curbed section does not indicate that any shoulder was contemplated along the westbound right-hand turn lane. Serth noted that the record plans make no indication of a 10' lane with a 4' shoulder but, instead, simply a turn lane that tapers from 6' to 14' wide.

Defendant's expert, Richard Lee, offered the opinion that the 14' right-hand turn lane was, in reality, a 10' turn lane with a 4' shoulder that was not delineated by any fog line. Based on my review of the record, Lee's opinion is not persuasive and unsupported by any of the documentary evidence. Initially, as discussed above, the record plans offer no indication that the 14' right-hand turn lane included any shoulder — the record plans indicate only that there is a 14' lane with a curb and an area graded for a future sidewalk (Exhibit 48, at 2). Secondly, even assuming arguendo that the designers contemplated the right-hand turn lane as a "wide curb lane" or "shared lane" for mixed use by motor vehicles, bicyclists, and pedestrians, it does not appear that the HDM considers the wide curb lane or shared lane appropriate for use by pedestrians. Lee's opinion that the right-hand turn lane, a wide curb lane as defined in Section 18.08.04 of the HDM (Exhibit 46, at 18-33), relies heavily on the standards set forth in Section 18.08 of the HDM, which addresses appropriate facilities for bicyclists, not pedestrians. There is nothing in Section 18.08.04 that addresses pedestrian traffic and, in fact, the accompanying sample renderings of the wide curb lane or shared travel lane display only vehicular and bicycle traffic in the lane (Exhibit 46, at 18-34), and do not include any delineated shoulder. Rather, the two renderings display pedestrians on an adjacent sidewalk. The absence of a fog line in the right-hand turn lane, which was discussed at some length during Lee's testimony, is of no matter here, as not only is it clear from the record before me that NYSDOT did not intend for there to be a shoulder in the right-hand turn lane, but also it appears that the 14' wide curb lane is not considered an appropriate pedestrian facility under Chapter 18 of the HDM. Finally, even if the wide curb lane could rightly be considered a 10' lane with a 4' shoulder, there is no evidence, and Lee acknowledged as such, that there was any study performed with regard to see if a larger than 4' shoulder was desirable, based on motor vehicle speeds in the turn lane, the percentage of large motor vehicles using the turn lane [FN2], and bicycle use in the turn lane (see Exhibit 46, at 18-13 [Section 18.06.07]). [*13]Based the record evidence, the testimony at trial, and my reading of the HDM, Lee's opinion that the unstriped right-hand turn lane was an appropriate pedestrian facility cannot be deemed credible.

I reject Defendant's contentions that it is entitled to qualified immunity for a discretionary determination under Weiss and its progeny (see also McLean v City of New York, 12 NY3d 194). Claimants demonstrated that there was no exercise of engineering discretion here; rather, it appears that the NYSDOT engineers and designers involved in the project ignored their own design mandates, as set forth in the HDM, and failed to install a pedestrian facility in the area of the intersection of Route 31 and Commencement Drive when that area was reconstructed for the Park and Ride Project. As Serth noted during his testimony, once the sidewalk was eliminated from the project, and there is no argument that this occurred only because of cost concerns and not for any design purpose, NYSDOT was required to replace the existing pedestrian facility with another pedestrian facility, which it did not do. Moreover, there is no dispute that there was no study performed on the effect to the acknowledged pedestrian traffic if the sidewalks in that area were eliminated but the existing shoulder was not replaced. In any event, NYSDOT replaced an existing 6' shoulder, which was undisputedly an adequate pedestrian facility, with a 14' wide curb lane and no sidewalks, which is clearly not an adequate pedestrian facility, at least based on my understanding of Chapter 18 of the HDM. As there was no reasonable basis for the plan adopted by Defendant (see Affleck v Buckley, 96 NY2d 553), and there was clearly no exercise of engineering discretion in the quite possibly inadvertent failure to install a pedestrian facility once the sidewalks were eliminated, qualified immunity shall not attach.

So, having found that Defendant is not entitled to qualified immunity, and that it breached its duty to pedestrians such as Claimant in the negligent design of the intersection of Route 31 and Commencement Drive, something that caused Claimant to have to walk in the right-hand turn lane with no other reasonable option available to her as a pedestrian, there is the question of whether that negligent design was the sole proximate cause of Claimant's injuries. I find that it was not. Vehicle and Traffic Law § 1156 (b) requires that:

"Where sidewalks are not provided any pedestrian walking along and upon a highway shall when practicable walk only on the left side of the roadway or its shoulder facing traffic which may approach from the opposite direction. Upon the approach of any vehicle from the opposite direction, such pedestrian shall move as far to the left as is practicable."

Here, the undisputed testimony offered at trial was that Claimant was out walking along Route 31, a stretch of road along which she often walked, at night, wearing dark clothing. The preponderance of the evidence at trial, evidence that was offered by Claimants on their direct case, showed that Claimant was proceeding westbound along the north side of Route 31, facing away from traffic and in violation of VTL § 1156 (b). Although Darlene Lund could not testify as to what way Claimant's body faced when she saw her in the right-hand turn lane, she testified repeatedly and consistently that the one thing she remembered seeing that night was the left side of Claimant's face looking back at her over her left shoulder. I found this testimony to be credible. Physically, the only way that Lund would have seen that view of Claimant was if Claimant was positioned facing west, away from Lund's vehicle, and turned her head to the left to look back at the approaching vehicle. Moreover, Deputy Daniel Luffman's report from the scene, [*14]also offered by Claimants on their direct case, indicated that Claimant's injuries were to the rear of her body, and consistent with her having been struck from behind (Exhibit 52, at 2). The evidence cited by Claimants in response to the assertion that Claimant was walking west, specifically Edward O'Dell's testimony that Claimant often changed her mind and could have been walking back east at the time, and the Wegmans receipt with a time stamp of 6:37 p.m., was speculative and unpersuasive.

Claimants assert, however, that Defendant failed to make a prima facie showing on the matter of Claimant's comparative negligence, and so Defendant is not entitled to a finding of comparative negligence as a matter of law. As Claimants introduced sufficient and compelling evidence which led me to conclude that there was clear and convincing proof of Claimant's comparative evidence, there was no need for Defendant to offer further evidence to make its prima facie showing on its own direct case. Rehashing the same testimony on Defendant's direct case would have been cumulative, repetitive, and unnecessary.

So, in terms of comparative negligence, I am faced with the following: Defendant was negligent in its design of the intersection at Route 31 and Commencement Drive, in that there was no pedestrian facility in the area of the right-hand turn lane. This negligent design caused Claimant to face three choices as she proceeded westbound along the north side of Route 31: (1) continue walking westbound along the clear, paved area, which left her exposed in the turn lane; (2) continue walking westbound in the estimated 6-12 inches of snow on the north side of Route 31 adjacent to the turn lane; or (3) take her chances crossing to the south side of Route 31 at the intersection of Commencement Drive and without the benefit of a crosswalk. Claimant was negligent by walking with, not facing, traffic along the shoulder, in violation of VTL § 1156 (b) and along a state highway with a 45 M.P.H. speed limit. It would not have been impracticable for Claimant to have used the crosswalk at the Wegmans shopping plaza prior to commencing her westbound walk back home. Taking those factors, combined with the decision to wear dark clothing while out walking at night, and there is no question that Claimant further exposed herself to danger with the decisions that she made that night.

I find that both parties are equally culpable for causing the February 24, 2007 accident and, accordingly, the Court finds Defendant 50% responsible and Claimant Jayne Baker-O'Dell 50% responsible.

A trial on the issue of damages will be scheduled.

All motions not previously decided are hereby denied.

LET INTERLOCUTORY JUDGMENT BE ENTERED ACCORDINGLY. Footnotes

Footnote 1:Upon my review of the evidence, the posted speed limit in the area of the intersection of Route 31 and Commencement Drive appears to be 45 M.P.H. Photographs 14 and 15 of Exhibit 53 display a sign proclaiming the 45 M.P.H. speed limit. This sign is near the entrance of the Viking Village Apartments, which is located on the north side of Route 31 approximately one-quarter mile east of Commencement Drive.

Footnote 2:I will note that it came out on Stephen Beauvais' testimony that it was anticipated that "hundreds" of buses and other vehicles would regularly use the new signaled intersection along Route 31 (Exhibit 43, at 28), although the percentage of buses and other larger vehicles was not noted.