Ryan v State of New York

[*1] Ryan v State of New York 2005 NY Slip Op 50752(U) Decided on April 12, 2005 Ct Cl Hudson, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 12, 2005
Ct Cl

THOMAS A. RYAN and SUZANNE RYAN, Parents and Natural Guardians and Administrators of the Estate of Kelly A. Ryan, Claimants, DECISION

against

THE STATE OF NEW YORK, Defendant.



102343



For Claimants:

HISCOCK & BARCLAY

BY:MICHAEL E. FERDMAN, ESQ., of Counsel

For Defendant:

HON. ELIOT SPITZER

New York State Attorney General

BY:GREGORY P. MILLER, ESQ.

Assistant Attorney General

Michael E. Hudson, J.

Claimants have sought to recover damages arising from the tragic loss of their daughter in a one-car accident on June 5, 1999. By agreement of the parties liability issues became bifurcated from damage claims, and proceeded to a trial before me on April 26, 27, June 30 and July 1, 2004. Seven witnesses were called to testify, and 27 exhibits were introduced into evidence in the course of the trial. At the conclusion of proof each party requested the opportunity to submit both initial and reply memoranda for my review. Now, upon consideration I must deny and dismiss the claim, based upon the following findings.

THE ACCIDENT

Proof of the underlying accident is largely derived from the eyewitness testimony of Thomas Sapio, as well as the evaluations and opinions of an accident reconstructionist, Thomas [*2]C. Onions. On June 5, 1999 [FN1] between approximately 7:30 and 8:00 a.m., Kelly A. Ryan [FN2] operated a 1995 Ford Escort northbound on route 240/277 in the Town of Orchard Park. That road, also known as Orchard Park Road and North Buffalo Road, was owned and maintained by the State of New York. Mr. Sapio also had been driving north on route 240/277 at that time, and at some point his vehicle became positioned directly behind Ms. Ryan's Escort. Based upon photographs in evidence (see Exhibits 8, 9) it appears that the road in that area was straight and level, with a single travel lane in each direction. The photographs also support that road conditions that morning were clear and dry. Mr. Sapio believed the speed limit in the area was 40 miles per hour, a recollection corroborated by numerous documents (see e.g. Exhibit 4, p. 3; Exhibit 15, p. 2; Exhibit 21, p. 7). The witness remained 20 to 30 yards behind the Ryan vehicle as they continued north. Mr. Sapio recalled that after they had passed a traffic light at the Mile Strip Road [FN3] intersection and approached a side street, Reppien Place, he observed the Escort begin to slow down and veer to the right. The vehicle then left the lane of travel at a speed of between 35 and 40 miles per hour, crossed over the road's asphalt shoulder, and proceeded down into an adjoining drainage ditch. The witness described the ditch, which ran parallel to the shoulder of the road, as between three and four feet wide, and approximately three feet deep. Mr. Sapio's observations, as well as photographs in evidence (see Exhibits 8, 9) support that Ms. Ryan's Escort traversed the sloping sides of the ditch in part, then angled to the north. The car continued a short distance with its left wheels positioned within the ditch until it struck a concrete headwall [FN4] and abruptly stopped. At no time during the incident did the witness recall observing the car's brake lights illuminate.

Mr. Sapio immediately pulled over to the side of the road and exited his vehicle. As he approached the Escort, Ms. Ryan opened the driver-side door, left her vehicle, and then reclined on the ground next to the road. The witness briefly tried talking with the young woman, and did not notice any odor of alcohol as he did.[FN5] He also looked at her car, and observed that the driver-side air bag had deployed. Based upon the autopsy report it appears that Ms. Ryan had sustained heart damage that caused her death shortly after the accident. [*3]

Thomas C. Onions, an accident reconstructionist retained by Claimants to investigate the accident, offered both investigative and opinion evidence concerning the occurrence. Although not an engineer, the witness possessed considerable experience in accident analysis as a former senior investigator with a local police department, and in his subsequent career as a private consultant. The witness also had extensive training in the field of accident reconstruction, and I have credited both his expertise and credibility in my review.

Through an inspection of the site within ten days of the incident and a review of the police and autopsy reports the witness found that the ditch and headwall were not readily traversable by an errant vehicle, and that no natural or man-made barriers protected a vehicle that left the road from contact with those areas. Mr. Onions noted that both front air bags had deployed during the incident, but that the injuries reportedly sustained by Ms. Ryan, i.e., a fractured sternum, rib injuries on her right side, and ruptured heart, were consistent with striking a steering wheel unprotected by an air bag. Relying upon Mr. Sapio's estimate that the Escort left the highway at 35 to 40 miles per hour, and his own damage-related assessment that the vehicle struck the headwall at approximately 19 miles per hour, Mr. Onions opined that Ms. Ryan experienced a sudden loss of speed as her car first entered the drainage ditch, and that the vehicle's air bags deployed at that time. As a result, those devices could no longer serve to protect the young woman at the second sudden loss of speed at the headwall itself. The witness offered the further opinion that if the ditch had not adjoined the road shoulder the Escort simply would have traveled onto the lawn area to the east of the road. Mr. Onions acknowledged the possibility that the car might then have struck one of the evergreen trees that had been planted in two rows on the adjoining lawn area. At that point, however, the air bags would have been intact, and able to deploy upon such contact. Notably, in his comments regarding causation, Claimants' accident reconstructionist did not address the circumstance where the open drainage system would have serviced the road, but at a distance that comported with modern clear zone recommendations.

With respect to the car's manner of travel it was Mr. Onions' opinion that as the Escort exited the road it started to cross the ditch, and its left wheels became caught within the excavation. The car then moved north along the path of the ditch to the point where it struck the headwall and stopped. The force of that second collision caused the car's rear end to briefly lift up and rotate counterclockwise, before again settling within the ditch itself.

The manner of redirection of vehicles toward culvert headwalls described by Mr. Onions has been recognized as a potential hazard in existing suburban road construction under the 1995 Highway Design Manual (see excerpts, Exhibit 7, § 10.2.7.4 [pp. 10-74 and 10-75]). The manual recommends that fixed objects in the ditch line and other areas within the designed clear zone be removed, rather than shielded by a barrier (id. § 10.3.1.2 [B] [p. 10-85]). I note that section 10.3 is designed in part to provide guidance in safety-related inspections and evaluations of roadside conditions on existing facilities (id. § 10.3 [1] [p. 10-78]).

LIABILITY CLAIMS

Liability issues are premised upon the location of the headwall and ditch in relation to the highway, and in the failure to replace or shield that drainage system, particularly in conjunction with either of two road construction projects one completed, one planned in the immediate area. In support of those assertions Claimants relied upon testimony from subpoenaed employees [*4]of the Department of Transportation (DOT) and related records for the road and reconstruction project.

Design Speed/Clear Zones. Brian Skok, a DOT employee who has held the position of assistant maintenance engineer since 1994, testified that approximately six weeks after the incident he was directed to measure the distance between the edge of the travel lane and headwall. That distance, known as the "clear zone," is a concept applied in new and reconstructed highways under the Highway Design Manual (see Exhibit 7, pp. 10-13 et seq.), to allow a vehicle that inadvertently leaves the roadway a hazard-free border to enable it to safely return to the road surface. The specific width of that recovery area would vary, and depend upon such factors as the road's design speed, vehicular usage, and adjoining slope (see Exhibit 7, Table 10-1, p. 10-7). Mr. Skok testified that the actual clear zone at the headwall measured 12 feet, and added that the recovery area along the adjoining drainage ditch would have been within inches of that width (see Exhibit 19). Although the witness did not measure the depth of the ditch he observed that it was substantially less than the four-foot drop that he had been taught was the threshold for adding a slope consideration to the charting of a clear zone. It was Mr. Skok's view that the appropriate clear zone in the area he had measured would be 10 feet, such that the headwall was positioned beyond the clear zone for the highway. The witness reportedly based his calculation upon the speed limit of 40 miles per hour, without expressly referencing a highway design speed for the area. In that earlier calculation Mr. Skok recalled having used a clear zone table that differed from that set forth in Table 10-1 of the Highway Design Manual, and I note that even at a design speed of less than 40 miles per hour Table 10-1 would support a recommended clear zone of approximately 15 feet. Regardless of whether the speed limit also equaled the design speed for the roadway, or whether the chart relied upon by Mr. Skok differed from that set forth in Table 10-1, the witness did not recommend that the headwall be removed at that point, since the road was scheduled for a full reconstruction during the year 2000 (see Exhibit 19, notation).

Claimants have challenged the production of Mr. Skok's measurement report (Exhibit 19), which had not been tendered in the course of discovery, and was inconsistent with the witness's representation of a lack of such written records in his earlier deposition testimony. However, I believe his explanation that his report had been misfiled. I also note that Mr. Skok's superiors in the DOT's Maintenance Division later determined that the suggested clear zone would have been 12 to 14 feet, rather than 10 feet, but accepted his opinion that the open drainage system should remain in place pending the overall road reconstruction. It also is significant that the concern that led to Mr. Skok's assignment was not this litigation, but a post-accident investigation of whether some prompt mitigation of the open drainage system was warranted for safety considerations (see Exhibit 20). The DOT Maintenance Division concluded that the area adjoining the ditch provided adequate clearance, and that interim action was not necessary in view of the road reconstruction then anticipated for December 2000 (see Exhibit 18).

Another witness called by Claimants, Mark G. Anderson, offered a different calculation of the appropriate clear zone under the Highway Design Manual excerpts in evidence. Mr. Anderson, now retired from the DOT, had worked on a 1993 bridge reconstruction project on route 240/277 that extended north from the approximate accident site. In the course of [*5]questioning by Claimants' counsel Mr. Anderson used the manual's Table 10-1 to compute a suggested clear zone for the accident site of between 20 and 21 feet. That determination occurred at Claimants' counsel's request, despite Mr. Anderson's admitted lack of recent experience with such processes. As part of his calculations the witness applied a highway design speed of 50 miles per hour that was suggested by counsel, but lacks sufficient support within the record for me to credit.

The provision of the manual relied upon in that computation, a reference to "a design speed of 50 miles per hour" (see Exhibit 4, p. 4), is set forth in the context of a bridge approach analysis for the planned reconstruction of the Smokes Creek Bridge. On close review the phrase actually appears to refer to the design speed for the road following reconstruction, which clearly was to be 50 miles per hour (see Exhibit 21, pp. 7, 19; see also Exhibit 16, p. 19 [referencing an 80-kilometer per hour design speed]).[FN6] I note that the operational evaluation set forth in Exhibit 4, page 4, went on to apply "current" vehicle traffic data to the same analysis, from which I infer that the 50-mile per hour design speed factor chosen for the study would not have been the then-current design speed. Moreover, even as upgraded that same exhibit suggests the design speed in the area of the reconstructed bridge was to be 45 miles per hour (Exhibit 4, p. 9). More generally, it would appear that a safety-related upgrade of that century-old road to accommodate anticipated increases in traffic should have resulted in a higher design speed, and at least one exhibit provides support that the reconstruction project was intended to increase the design speed to 50 miles per hour. In a memorandum from D.A. Sobol of the DOT's Traffic Engineering and Safety Group to E. J. Nowicki, the DOT Regional Planning and Program Manager, the results of a radar speed analysis for the area were listed, together with the statement "[w]e anticipate an increase in operating speeds, as a result of this project. Therefore, we recommend an 80/KMH design speed for this project" (Exhibit 21, Memorandum dated January 3, 1996 [No. 6]). Lastly, I recognize that at the time of the accident the bridge reconstruction project referenced in Exhibit 4 had been completed. However, the road at the accident site had not been reconstructed. I therefore conclude that the design speed that Mr. Anderson applied in his computation was actually a projected figure for the highway upon reconstruction, and that insufficient proof exists to determine the existing design speed for the accident site at the time of the incident.

To the extent that the Highway Design Manual would address design speed criteria (see Exhibit 7, Section 4.5 [A] cross-references to Sections 4.3 and 4.4, and Chapter 2), and might have assisted in making such computations, the excerpts Claimants provided within Exhibit 7 did not extend to those provisions.

Two other DOT employees, Kenneth Kuminski and David Alan Sobol, described the methodology to be used in clear zone computations in a manner that buttressed the procedure followed by Mr. Anderson, although again without providing an adequate foundation for accepting a 50-mile per hour design speed. Mr. Kuminski further explained that the determination of an appropriate clear zone also involved the application of engineering judgment. Thus, while the manual would provide a chart for measuring a desirable or suggested clear zone, the actual design of a clear zone would further consider the specific constraints and impediments that exist in a particular project. [*6]

Notwithstanding the lack of clear proof on the issue, at points during my later discussion of liability issues I will assume that a recommended clear zone for the road when measured pursuant to Table 10-1 of the Highway Design Manual would have been 15 to 21 feet.

Highway Reconstruction. The only notable testimony concerning the construction history of route 240/277 came from Kenneth Kuminski, a professional engineer who has served as a design job manager with the DOT for some 15 years. Mr. Kuminski offered a conclusory statement that the State's earlier construction activities on that roadway would have followed the road design and construction standards existing at those times. Those accepted construction practices extended to the use of concrete headwalls for roadside drainage during the 1950s, a practice discontinued over the last 20 years. Several exhibits (see Exhibit 16, p. 3-4 [No. 5]; Pavement Evaluation Report, pp. 1-2; Exhibit 21, p. 4, [No. 5]) support that the highway was first constructed under a State contract in 1902-1903 and underwent several changes over the years, including some surface replacement in and about 1909, and a major renovation in 1931-1932. The bridge over Smokes Creek was added in 1929, also pursuant to a State contract (see Exhibit 4, p. 3; Exhibit 5, p. 4; Exhibit 15, p. 5). There also was some general comment concerning reconstruction during the 1950s. In contrast, all excerpts from the Highway Design Manual date to the 1990s, and there is no evidence that Exhibit 7, Table 10-1, or the concept of a "clear zone" existed as a consideration in highway design during those earlier periods of construction and reconstruction. So also, there is no evidence that the ditch and headwall area in question had been the site of any incident over the decades that preceded Ms. Ryan's accident.

On March 4, 1985 the DOT issued a Project Initiation Request for the reconstruction of both Orchard Park Road and the Smokes Creek bridge (see Exhibit 15). That proposal discussed the reconstruction and widening of route 240/277 north from the village line of the Village of Orchard Park to Southwestern Boulevard (US route 20) together with the replacement of the 1929 bridge span and approaches. The plan subsequently became severed into two proposals, such that in 1990 and 1991 the bridge project was assessed separately from the road reconstruction (see Exhibits 4, 5). From the project initiation request (see Exhibit 15, pages 9 and 11), as well as the testimony of Mr. Anderson, it appears that from 1985 onward the DOT had expected that funding for each project was to come from separate sources. As of August 1991 the DOT anticipated that the bridge reconstruction would be largely paid for under a Federal "Highway Bridge Replacement & Rehabilitation" program (see Exhibit 5, p. 15).[FN7] The scope of such funding was restricted, however, and I find from the testimony of Mr. Anderson that the Smokes Creek bridge project could not have served as a means of financing any road reconstruction beyond the new span and its approaches. Similarly, from the first planning stage the DOT believed that the proposed two-mile reconstruction of route 240/277 could largely be funded through a different Federal grant program (see Exhibit 15, p. 11 [§ VII (B)]). Ultimately, however, no such grants were available, and the road reconstruction project appears to have been [*7]financed solely through appropriations from the DOT itself.[FN8]

Mr. Kuminski acknowledged that once a road reconstruction of the size contemplated in the 1985 project initiation request is first proposed, some five to seven years commonly elapse before actual construction occurs. That time lapse not only depends upon engineering and scoping matters, but also funding availability and priorities in relation to other highway construction needs. Here, considerable evidence supports that the bridge project became severed from the broader road reconstruction, and proceeded to contract in March 1993, with completion in December 1993 or early 1994. The road reconstruction, anticipated for 2000, actually would not occur until 2002-2003.

The 1993 bridge reconstruction did not simply involve the replacement of the span over Smokes Creek, but also included some redesign and rebuilding of the adjoining highway approaches, largely necessitated by the increase in elevation of the new bridge over the creek bed. The length of roadway involved in the bridge project was limited to approximately 1650 to 1800 feet of the almost two miles of route 240/277 first listed for reconstruction in the 1985 project initiation request. Mr. Kuminski reported that the accident site would have been just north of the southern work limit for the bridge approaches (see Exhibit 2). However, the road adjoining the headwall did not undergo reconstruction, but rather a simple repaving of the existing road and shoulder surfaces in order to blend into the reconstructed roadbed to the north.[FN9] The engineer further explained that since the roadway was only being resurfaced in that area, no reconstruction of the adjoining ditch/headwall areas fell within the contract's work.

Mr. Kuminski acknowledged that the ditch and headwall represented possible hazards to traffic on route 240/277, and that the traversability and tire redirection concerns identified in the Highway Design Manual applied to the area of the accident site. He believed that the manual would have served as a guide in that project, although subject to the professional judgments of those engineers who designed the bridge and approaches. He testified further that safety concerns would override cost considerations, and acknowledged that the L-wall could have been mitigated with a revised end assembly at an estimated cost of $3,000 to $4,000.[FN10] Mr. Kuminski also agreed that where a hazard is found to exist outside the listed work zone of a project the DOT would be duty-bound to address that safety concern, independent of the physical scope of any contract.

Contrary to the assertions of counsel in post-trial submissions, I do not believe that Mr. Kuminski testified that the headwall and ditch represented a dangerous condition within the road's clear zone that should have been mitigated as part of the bridge project, as opposed to the [*8]later road reconstruction. Rather, Claimants have inferred such a conclusion from select segments of the engineer's testimony. Mr. Kuminski did offer that any judgment as to whether a potential hazard should be mitigated would have considered a number of factors, including the anticipated road reconstruction, and the areas's history of accidents. He also explained that the two-mile stretch of roadway in question could have included some 50 headwalls, an estimate in part based upon the four such drainage supports that he observed within Exhibit 2 itself. While the witness later appeared to equivocate in the accuracy of that 50-headwall estimate, he also added that utility poles and other potential hazards would have remained along the two-mile stretch of route 240/277 between 1993 and the completion of the planned reconstruction a decade later.

Similarly, I believe that counsel has misinterpreted the scope of Mr. Anderson's testimony. Mr. Anderson concurred with Mr. Kuminski's assessment of the several work zone limits set forth under the bridge reconstruction plans. Based upon his analysis of drawings set forth in Exhibit 1, at pages 26 and 28, Mr. Anderson testified that paving work under the contract began 50 feet to the north of the southern contract limit. The headwall was located lateral to the highway, approximately 60 feet north of the point where the contract first called for the repaving of a thin overlay of asphalt to "feather" the existing road into the reconstructed roadbed nearer to the bridge span. He likewise agreed that the headwall was located beyond the area of roadway designated for actual reconstruction under the contract. Mr. Anderson also acknowledged that if the ditch and headwall had fallen within the clear zone of the bridge project he would have recommended their replacement with a closed system.

Patricia H. Pericak, an engineer employed in the DOT's Accident Analysis Section, testified that in the course of determining the scope of the reconstruction project the DOT Planning Group requested that her unit conduct an accident analysis of the area. Her accident analysis group then performed a study that included field work at the site in November 1995 and January 1996. Ms. Pericak's section concurred with other DOT engineering recommendations that the ditch and headwall in question be removed as part of the planned road reconstruction project, but did not recommend immediate removal or mitigation of the site. In reaching that recommendation her unit conducted an accident analysis of the area of the ditch and headwall over the period from October 1991 through September 1994, finding an absence of accidents where vehicles had left the road. In addition, the witness testified that at defense counsel's request she conducted a further accident analysis for the ditch and headwall area for periods from September 1995 through April 1999, and again found no record of any accidents in the area in which vehicles had left the roadway.

Daniel Alan Sobol, another professional engineer employed by the DOT, testified concerning the analysis performed by his unit, the Traffic and Safety Group, in the scoping of the 240/277 road reconstruction project. Although Mr. Sobol was not directly involved in the review, someone from his department studied the plans and conducted a field inspection of the project site for the sole purpose of determining whether potential safety hazards existed. That review, conducted separately from the safety analysis performed by Ms. Pericak's accident analysis section, resulted in the generation of three memoranda to the DOT's Regional Planning Department with safety-related recommendations. In the first two, dated January 3 and 30, 1996 (see Exhibit 21, Appendix 1), Mr. Sobol recommended the removal of headwalls, drainage [*9]ditches and other fixed objects from clear zone areas along route 240/277 as reconfigured and widened in the contemplated road reconstruction. In the third, a memorandum of August 6, 1998, Mr. Sobol made further inquiry concerning the means by which the design department planned to resolve clear zone encroachments within the project limits (Exhibits 22, p. 2, No. 3). Although he never received a response to that question, that inquiry was made in the context of the anticipated highway project, and did not urge any interim action.

Mr. Sobol acknowledged that the drainage ditch and headwalls depicted in photographs of the accident site represented potential hazards of the type his group recommended be addressed. He also agreed that the accident site was an area where an errant vehicle could potentially have its wheels become locked in the drainage ditch, then strike the headwall abutment. He made clear, however, that his group's recommendations for removal were made solely in the context of the capital project itself, and I find it significant that his group did not propose the immediate mitigation of headwalls, drainage ditches or other potential hazards along route 240/277, and specifically in the area where Ms. Ryan would later experience her accident.

DISCUSSION

Without question the State owes a nondelegable duty to adequately design, construct and maintain its roadways in a reasonably safe condition (Friedman v State of New York, 67 NY2d 271, 283 [1986]). However, it has long been recognized that governmental entities do not serve as insurers of the safety of their roadways, and so long as a highway may be said to be reasonably safe for people who obey the rules of the road, that duty is satisfied (see Tomassi v Town of Union, 46 NY2d 91, 97 [1978] [addressing liability of municipality for construction of highway with drainage ditches to each side]). In the area of highway design the Courts must also accord qualified immunity to the State's highway planning decisions (see Friedman, 67 NY2d at 283-284; Weiss v Fote, 7 NY2d 579 [1960]). Under that doctrine of qualified immunity "something more than a mere choice between conflicting opinions of experts is required before the State or one of its subdivisions may be charged with a failure to discharge its duty to plan highways for the safety of the traveling public" (Friedman, 67 NY2d at 284, quoting Weiss v Fote, 7 NY2d at 588). Instead, a governmental body's liability would hinge on whether its study of a traffic condition was plainly inadequate, or there was no reasonable basis for the plan (see Friedman, 67 NY2d at 284). I also am mindful that negligence cannot simply be presumed from the mere happening of an accident, and instead must be affirmatively established by competent evidence of a breach of a duty of care (Mochen v State of New York, 57 AD2d 719, 720 [1977]). Claimants would have the burden of establishing their entitlement to relief by a fair preponderance of the credible evidence (Rinaldi & Sons v Wells Fargo Alarm Serv., 39 NY2d 191, 196 [1976]).

I reject Claimants' assertions that liability can be premised upon noncompliance with the Highway Design Manual guidelines for clear zones. The standards set forth in Exhibit 7 date to the mid-1990s. At the time of the incident route 240/277 was an old highway, last reconstructed in 1931-1932, with some unspecified activities also occurring during the 1950s. There is no proof that the standards set forth within the Highway Design Manual would have applied to road construction determinations some 40 to 70 years before the incident, and Mr. Kuminski has testified that the earlier State projects would have followed the standards applicable at that time. For those reasons the clear zone provisions within the Highway Design Manual cannot apply to [*10]create a retroactive standard of care (see Preston v State of New York, 6 AD3d 835 [2004], lv denied 3 NY3d 601 [2004]).

The guidelines and standards within the Highway Design Manual can become applicable if an older highway undergoes significant repair or reconstruction that would be subject to those provisions (see Preston, 6 AD3d at 835-836). In that regard Claimants contend that the 1993 bridge reconstruction project should have triggered a mitigation of the accident site. I disagree. I understand that the contract called for the "reconstruction" of the Smokes Creek bridge and approaches, and that the accident site was located just within the contract limits of that project. I also accept Mr. Anderson's statement that the ditch and headwall would fall within the clear zone of the highway at such point as a reconstruction of that roadway would occur. Critically, however, under the bridge contract the headwall was not within the approach area designated for reconstruction. Instead, that structure adjoined an area wherein the existing road would be milled and retopped with asphalt so as to blend into the reconstructed approach further to the north. The road along the ditch area did not even undergo resurfacing. In my view those limits on the scope of the project would likewise control the scope of the application of the reconstruction standards set forth in the Highway Design Manual.

With hindsight it appears tragically arbitrary that shoulder and drainage reconstruction on the 1993 bridge project would have terminated just to the north of the area of the accident. That judgment, however, falls squarely within the discretionary determinations of Weiss v Fote, and for that reason is beyond review as a simple question of negligence. Given the absence of an accident history, the funding limitations of the bridge project and the knowledge of the planned road reconstruction, the determination to defer ditch replacement work represented a matter of judgment by DOT employees which must be afforded qualified immunity (see Tomassi, 46 NY2d at 97).

Testimony has been elicited concerning the relatively modest cost of installing a barrier to protect motorists from the L-wall, as well as some indication from Mr. Kuminski that the area presented a potential hazard that he might have addressed if he had been involved in the bridge project. Once again, however, the municipal planning doctrine requires more than a retrospective difference in judgment to establish liability, and neither of the two DOT engineering groups that evaluated safety issues along route 240/277 as part of the road reconstruction had recommended interim action. As to cost, Mr. Kuminski's testimony concerning the total number of headwalls and other potential hazards along the two-mile stretch of roadway demonstrates that while erecting an interim barrier at the L-wall would have increased the cost of the bridge project only marginally, the total cost of mitigating the many other headwalls, ditches, utility poles, and other fixed objects along the right-of-way would have been far more substantial. Further, while the headwall corresponded to an area of roadway that had undergone repaving, that structure actually represented the northern end of an open drainage system that continued to the south, beyond the bridge contract limit (see Exhibit 2). Partial mitigation or repositioning again would have involved cost factors, and yet another decision as to where to stop work, pending the completion of scoping and contracting for the road reconstruction itself.

Claimants also have urged that the delay in the overall road reconstruction from the first proposal in 1985 until a point after the 1999 accident breached a duty of care in and of itself, and in that regard have cited Friedman, 67 NY2d at 286-289. In my view, however, Friedman did [*11]not recognize that delay in acting upon a highway reconstruction proposal is actionable standing alone. To the contrary, Friedman reaffirmed that the determination of the priorities and funding to be afforded such projects fall squarely within the governmental planning determinations that are immune from liability under Weiss v Fote. Claimants' citation to Friedman actually addressed the circumstance where a known dangerous condition had existed, thereby compelling action to remedy the danger within a reasonable period of time. That duty could not be shielded from liability because the governmental entity had determined to defer its performance.

Here, there is no evidence that any of the several DOT engineering reviews had resulted in the conclusion that the headwall and ditch constituted a dangerous condition. As previously noted I dispute counsel's view of the testimony of Mr. Kuminski and Mr. Anderson, and believe that a significant difference exists between the identification of a potential hazard to upgrade to current design standards and the recognition of a dangerous condition. A highway can always be made safer (see Tomassi, 46 NY2d at 97). Again, however, even if those two engineers had opined at trial that the area in question had presented an actual hazard, under the municipal planning doctrine those current opinions cannot be favored over the safety-related studies previously conducted (see Friedman, 67 NY2d at 284-286).

Moreover, and independent of the question of qualified immunity, Claimants have failed to establish that the roadway was not reasonably safe for the motoring public. As of 1997 approximately 11,500 vehicles traveled north and south along that section of route 240/277 every day (see Exhibit 16, p. 7). There was no evidence produced that there had ever been an accident in that area wherein a vehicle had exited the roadway, and to the contrary, there is evidence that during years of study periods there had been no such accidents along that straight and level roadway. While the clear zone would likely not have complied with criteria set forth in the 1995 Highway Design Manual, such noncompliance by itself cannot support liability (see Preston, 6AD3d at 835), and the road did have a 12-foot recovery width that included an improved shoulder. There is no evidence of any defect within the road or shoulder areas themselves.

Having failed to prove that the roadway was not reasonably safe, the delay-based claim for relief under Friedman must fail.

Lastly, and notwithstanding the duty to remedy dangerous conditions beyond the travel lanes and shoulders of a highway set forth in Preston, 6AD3d at 836, several appellate authorities have declined to recognize that drainage ditches and headwalls positioned beyond the shoulder area would create unreasonable dangers, since vehicular travel beyond road and shoulder limits is "neither contemplated nor foreseeable" (Tomassi, 46 NY2d at 97; see also Green v County of Allegany, 300 AD2d 1077 [2002]).

Even if I were to accept the assertion that a 12-foot clear zone violated the Highway Design Manual, and that Defendant was negligent in failing to maintain a recovery width of 15 to 21 feet, Claimants have failed in their burden of establishing that the presence of the ditch and headwall in violation of those suggested width limitations constituted a contributing legal cause of their daughter's accident. The Escort veered from the roadway at 35 to 40 miles per hour. For reasons that were never explained Ms. Ryan never attempted to apply her brakes, or otherwise make use of the existing 12-foot clear zone to turn back onto the roadway. Assuming even the lower estimate of 35 miles per hour the vehicle would have traveled at more than 51 feet per second, and thus would have covered the additional 3 to 9 feet recommended under Table 10-1 in [*12]a fraction of a second. Since no observable effort at stopping or turning back onto the travel surface had occurred, I fail to see how the addition of what at most would have been another two-tenths of a second of travel time would have had any causal consequence in the incident. Indeed, Mr. Onions premised his assessment of survivability on the complete absence of any ditch/headwall, rather than the positioning of that road drainage structure a short distance further away from the travel lane.

In light of the above I will not address the degree to which CPLR Article 14-A might also apply herein.

The Claim is hereby dismissed.

LET JUDGMENT BE ENTERED ACCORDINGLY. Footnotes

Footnote 1: I take judicial notice that June 5, 1999 was a Saturday.

Footnote 2: From the autopsy record in evidence (Exhibit 23) it appears that Ms. Ryan was 18 years old at the time of the incident.

Footnote 3: Also referenced as "Milestrip Road."

Footnote 4: Kenneth Kuminski, a licensed professional engineer who worked as a design job engineer with the DOT, later described the headwall as an L-wall, which he explained was an "L" shaped concrete structure positioned at the end of a drainage pipe, which it served to support.

Footnote 5: According to a toxicology report (Exhibit 23, third page) Ms. Ryan had a blood alcohol level of .03 percent weight/volume (blood) and .06 percent weight/volume (urine). At age 18, Ms. Ryan was barred under Vehicle and Traffic Law § 1192-a from operating a motor vehicle after having consumed alcohol.

Footnote 6: I take judicial notice that 80 kilometers per hour equals 49.7 miles per hour.

Footnote 7: Exhibit 4, p. 13 (§ V [B]), prepared the prior year, suggested that the bridge project would be funded entirely by the State.

Footnote 8: Exhibit 16, p. 23, reflects that the projected cost of the road reconstruction was to be $7,945,000, with "[f]unding: 100% 'State Dedicated Funds'." See also, Exhibit 21, p. 23.

Footnote 9: On review of Exhibit 2, as well as Exhibit 1, page 22, I find that the section of roadway where the Escort first veered into the drainage ditch was actually below the southern work limit, although within the project's contract limit.

Footnote 10: Similarly, Mr. Anderson estimated that a headwall barrier could have been installed at the site for approximately $5,000.