Fan Guan v State of New York

[*1] Fan Guan v State of New York 2007 NY Slip Op 51241(U) [16 Misc 3d 1103(A)] Decided on May 24, 2007 Ct Cl Marin, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 24, 2007
Ct Cl

Fan Guan as Administratrix of the Estate of Zhu Bao Chen, deceased, Claimant,

against

State of New York, Defendant.



105083



APPEARANCES:For Claimant:

Lipsig, Shapey, Manus & Moverman, P.C.

by: Alan M. Shapey, Esq.

For Defendant:

Andrew M. Cuomo, Attorney General

by: John M. Shields, AAG

Alan C. Marin, J.

This is the decision following the trial of the claim arising from the death of Zhu Bao Chen in an accident on the Northern State Parkway when he was driving to work on the rainy morning of November 10, 2000. Mr. Chen had left his home in Queens and was on his way to Port Jefferson in Suffolk County, where he was employed as a chemical engineer for an aerospace company.

On that day, claimant [FN1] took the Northern State Parkway through Nassau County into Suffolk. His wife Fan Guan testified that sometimes her husband took that route, and on other workdays, the Long Island Expressway. She recalled that he had left that morning at about 6 a.m. Some time after 7 a.m., Chen reached Suffolk County west of exit 42 in Huntington when he lost control of his car, left the road, hit a tree and was killed (cl exh 8).

Officer Michael Christy, whose testimony was received via his deposition of September 13, 2002, was the first officer on the scene, coming upon the crashed vehicle during his normal patrol at 7:18 a.m. (id., fourth unnumbered page). Officer Christy prepared the police accident report, which includes a diagram of the site and of the large ponded area in the left lane just west of where Chen hit the tree. As measured by Christy, the puddle was 161 feet long and 15 feet across at its widest point (cl exh 8, seventh page). The officer did not include depth in his measurements; Christy characterized the condition he saw as "slight ponding."

But Sergeant Brodie Schultz, who arrived on the scene at 7:45 a.m., testified that the water was as deep as eight inches. Sergeant Schultz described the rainfall that morning as very heavy. The official weather data recorded a total rainfall for November 10, 2000 of 2.77 inches at the closest observatory site (def exh M, p. 51). [*2]

Sergeant Schultz used a shovel to remove the leaves that were clogging a drain and the flooding quickly cleared. In any event, there was no basis for concluding that because of faulty design or maintenance, a dangerous condition was created (or chronically created) of which defendant knew or should have known. On the other side, the record does not support a finding that Mr. Chen was speeding, inattentive or otherwise operated his vehicle in an unsafe manner; Schultz observed that claimant had been wearing his seatbelt.

It is undisputed that no one saw how the accident happened. There were skid marks on the grass between the road and tree (cl exh 1), but none on the road itself- - claimant arguing that such was the result of the wet pavement. Photographs and the videotape that the police took which might have shown the tire marks were misplaced and never turned up. Although Sergeant Schultz concluded that there was no objective evidence that Chen's vehicle entered the puddle, Officer Christy's report stated that the claimant's car went through the puddle, hydroplaned and skidded (cl ex 8, first page).

On behalf of the Estate of Mr. Chen, the contention made is that given the posted speed limit, the State was required to maintain a clear zone of 30 feet from the edge of the road, principally by removing fixed objects or shielding them with a guide rail, and that the failure to do so was the proximate cause of Chen's fatal injuries inasmuch as the tree claimant struck was 24 feet off the road. See, for example, Gutelle v City of New York, 55 NY2d 794, 447 NYS2d 422 (1981).

A clear zone is the area starting at the edge of the through travel lane, and it is intended for the safe use of a vehicle that, for whatever reason, leaves the road (see def exh S). The zone should be clear of "fixed objects," as such term is defined. Thus trees with a diameter of less than 4 inches are not fixed objects, the presumption being that they will give sufficiently when struck by a vehicle. The tree that Chen collided with was approximately 20 inches in diameter. Other examples of fixed objects are control boxes, traffic signal supports, stand pipes, overhead sign support and hydrants (cl exh 17, p. 2; cl exh 15, p. 10-4). Cary Leuschner, who had been the design unit supervisor for Region 10 (Nassau-Suffolk) of the State Department of Transportation (DOT), testified at trial that the options for dealing with fixed objects in a clear zone were: removal, relocation, modification, shielding and delineation.[FN2]

In the late 1960's, a field study had been done which demonstrated that 80% of off-the-road accidents occurred within 30 feet of the edge of the pavement (cl exh 15, table 10-1 from a February 1968 source, p.10-6; cl exh 12).[FN3] Consequently, a table of clear zone areas as a function of design speed was established; the design speed is invariably greater than the posted [*3]speed limit. At a design speed of 30 m.p.h., the roadside clear zone should be 20 feet; at 40 m.p.h., 25 feet and at 50 m.p.h. or greater, the required clear zone is 30 feet (cl exh 15, Table 10-2 on p. 10-6). For the Northern State Parkway in the subject area, the posted speed was 55 miles per hour and the design speed was 70 m.p.h.

Claimant's exhibit 15 is Chapter 10 of the DOT Design Manual.[FN4] There are different revision dates on various pages. Tables 10-1 and 10-2 appear to have been effective no later than January of 1978 (but page 10-7 suggests that the date was May of 1981). Page 10-5 includes the following directive: "it has been determined that for design speeds of 50 M.P.H. or greater, a clear area of 30 feet will be required . . ." For its part, defendant offered a page from a DOT document with a "revised January, 1977" date, which includes the same chart showing that a design speed of at least 50 m.p.h. required a 30-foot roadside clear area (def exh T).

Page 10-7 (extending to page 10-8), with a May 1981 date, contains a chart of fixed objects and the proper responsive action to each. The chart provides that trees over four inches in diameter should be "remove[d] whenever possible." See the 1989 Roadside Design Guide from the American Association of State Highway and Transportation Officials (AASHTO). Chapter 3.1 of the Guide references a 1974 AASHTO standard on 30-foot clear zones for high speed roadways (cl exh 13).[FN5]

Preliminarily, defendant argues that the tree Chen struck was in fact 36 feet from the properly measurable road edge because the tree was located off an exit ramp (def exh N), and the measurement should be made from the closest through-lane. This argument is unavailing; defendant cannot show that there is any lesser speed limit for the eastbound exit 42 ramp or that the clear zone table does not apply to such ramps.[FN6]

The core of the State's defense is that there was no duty to maintain a clear area of 30 feet on the Northern State Parkway because it was completed before the 30-foot clear zone was in effect. Richard Causin, an engineer with DOT, testified that the area of the Northern State where this accident occurred was completed "in the early 50's," noting that plans for this segment were approved in July of 1950 (def exh H).

Before considering this argument, there are two major exceptions thereto that claimant cannot satisfy. First, reconstruction or renovation can trigger the use of new standards. To this [*4]trier of fact, reviewing the evidence, it cannot be concluded that making the clear zone 30 feet wide would have been within the purview of these projects: the median barrier replacement and rehabilitation of eight bridges begun in 1985; a 1993-94 project for repavement and new drainage work; or the installation of 32 light poles in this area per 1998 plans revised in 1999 (cl exhs 23, 26 and 22).

Secondly, an actual history of accidents can require modification of an otherwise unassailable original highway design plan. Given the 33,000 weekday, eastbound traffic count,[FN7] the number of accidents was not such that a safety modification would have to be considered per Friedman v State of New York, 67 NY2d 271, 502 NYS2d 669 (1986). On claimant's behalf, a DOT summary of accident type is offered for a 0.9 mile stretch of the Northern State Parkway (marker 1060 to 1069) covering the area of the accident from January 1, 1987 to November 11, 2000, the day after Chen's death (cl exh 14). The table records twenty "first event" collisions with a tree, including one fatality (Chen's), twelve injuries and seven that were property damage only. There are also 15 "second event" occurrences, instances where vehicles struck trees after hitting something else. This is for a period of fourteen years over nearly a mile of roadway; moreover, the data is not broken down so that it can be determined which trees were less than 30 feet off the road.

Claimant's exhibit 24 is a 139-page printout by descriptive analysis for the same time and space frames as exhibit 14 covers. Page 59 of the exhibit contains Mr. Chen's accident. The Estate's expert engineer, Nicholas Bellizzi, tabbed on this document tree collisions within less than a quarter mile of Chen's: other than Chen's, the total was eleven accidents, eight of which, like claimant's, involved eastbound vehicles - - from October 25, 1991 to January 20, 2000.[FN8]

In view of the decades' long intervals between the 1950's Parkway construction, the establishment of the 30-foot clear zones circa 1977, and Chen's death in 2000, an argument of some logic can be advanced centering on the fact that trees, obviously, are different from concrete or outcroppings of rock. To that end, a familiar line of cases holds that a dead, decayed or overhanging tree that impedes or falls on a vehicle can serve as the basis for liability; of course, these cases pertain to specific trees that pose a danger to vehicles traveling on the roadway, but the underlying point remains: trees can be cleared relatively easily. See for example, Guido v State of New York, 248 AD2d 592, 670 NYS2d 524 (2d Dept 1998).

Contrast that to a municipality that constructed 10-foot wide lanes before, for example, 12 feet became standard, or to the asphalt culvert built in 1931 that was the subject of Vizzini v State of New York, 278 AD2d 562, 717 NYS2d 415 (3d Dept 2000). But in any event, it is not within the scope of this trier of fact to decide whether trees could have been cleared with perhaps new planting farther back: trees of a certain diameter are defined as fixed objects in DOT's Design Manual and by the AASHTO standards. [*5]

This trial court is bound by the decision of the Third Department [FN9] in Preston v State of New York, 6 AD3d 835, 775 NYS2d 115 (2004), lv denied 3 NY3d 601, 782 NYS2d 404 (2004). In Preston, claimant's decedent died when she was a passenger in a car that left State Route 96 and struck a tree within the applicable clear zone. The appellate court reversed the trial court that had found a duty to cut down the offending tree, holding that the standards that required such removal "became accepted or required long after Route 96 was last reconstructed and defendant undertook no significant repair or reconstruction that would have been subject to them . . . "

6 AD3d at 835-836, 775 NYS2d at 116 (citations omitted). Nor, as the Third Department added, was there notice of a specifically dangerous condition.

See also the Fourth Department's Cave v Town of Galen, 23 AD3d 1108, 1108-09, 804 NYS2d 219, 220 (2005) to the effect that "it is well settled that compliance with design standards adopted after the construction of a highway is not required" except, where significant repair or reconstruction is undertaken, quoting Preston.

The defendant never held a public hearing and never studied the possibility of compliance,[FN10] even though the Recommendations of the Parkway Standard Task Force (January 1989) stated an apparent intention to do so: "After a careful review of the accident record, alignment, embankment geometry and input from interested citizens, trees in some areas may be retained within the 30' clear zone without [a] guide rail."[FN11] It might be noted that had a project to create a 30-foot zone along the Northern State Parkway been undertaken, but because of its nature, phased in over a long period of time, the State would have had the benefit of qualified immunity against a suit from a motorist who went off the road in an unfinished portion thereof. Friedman, supra .

Without a more pointed accident history, or the kind of reconstruction that would comprehend the clear zone, this Court can find no authority under these circumstances that a study - and its implementation - was required.[FN12] [*6]

***

This tragic case was professionally and assiduously tried by counsel on behalf of claimant's estate, including a thorough and insightful presentation by its expert witness, Nicholas Bellizzi. However, in view of the discussion above, the Court is constrained to dismiss the claim of Fan Guan, as administratrix of the Estate of Zhu Bao Chen, deceased (claim no.105083).

LET JUDGMENT BE ENTERED ACCORDINGLY. Footnotes

Footnote 1: In this decision, the term "claimant" will refer to the deceased Zhu Bao Chen.

Footnote 2: These are listed "in order of safety with the most desirable listed first" (page 3 of claimant's exhibit 17, which is a May 16, 2000 memorandum to DOT Region 10 design unit supervisors).

Footnote 3: Claimant's exhibit 15, which as noted in the next paragraph of this Decision, is Chapter 10 of DOT's Design Manual. Figure 10-A therein is entitled, "Distribution of 211 General Motors Proving Ground Off-The-Road Accidents." In New York State for a sample year, 1982, there were 30,580 accidents involving vehicles that left the road and struck fixed objects which resulted in either a fatality or personal injury; trees had the highest fatality to accident ratio of all fixed objects struck by vehicles (cl exh 10, p. 2 and cl exh 11, p. 2).

Footnote 4:Claimant's exhibit 20 covers chapter one and, at least, part of chapter two of the Design Manual.

Footnote 5: See also claimant's exhibit 21, a chapter from the AASHTO Maintenance Manual of 1987. Page 100 provides that "For safety reasons trees larger than four inches in diameter should not be allowed to become established within 30 feet of the abutting lane edge or within 15 feet on back slopes."

Footnote 6: Defendant, in its Post-Trial Memorandum (third unnumbered page), cites Christopher v State of New York, Ct Cl, June 28, 2002 (unreported, Claim No. 98010, UID #

2002-028-504, Sise, J.), but that case relates to an auxiliary lane, which the Christopher court noted, from the photographs, merged into the road before ending at a bridge abutment. Compare the definitions for "auxiliary lane" and "exit ramp" in 17 NYCRR §200.6(b) and in defendant's exhibit W.

Footnote 7: Page 1 of defendant's exhibit G was the eastbound Northern State traffic count between exits 41 and 42 taken on October 20, 1999, a Wednesday.

Footnote 8: Pages 31, 37, 75, 79, 92, 95, 102, and 104 of claimant's exhibit 24; each is listed at either marker 1066 or 1068. See also defendant's exhibit L.

Footnote 9: Given that no Second Department case on point has been cited or found, under Mountain View Coach Lines v Storms, 102 AD2d 663, 476 NYS2d 918 (2d Dept 1984), this Court is bound by the decisions in other departments of the Appellate Division.

Footnote 10: Ironically, Mr. Leuschner testified that every letter from an elected official or citizen making a complaint about some aspect or condition of a road within his jurisdiction would generate a study by DOT.

Footnote 11: Def exh Y, p. 6. While the above-quoted language from exhibit Y implicates a presumption that trees will be cleared or shielded unless otherwise decided after review, the opening sentence of the paragraph suggests less of an activist posture: "Rehabilitation or minor up-grading of existing parkways using a 30' minimum clear zone could result in wholesale removal of bordering trees, or literally lining the roadway with guide rail."

Footnote 12: Cited on behalf of claimant is Santiago v New York City Transit Authority, 271 AD2d 675, 706 NYS2d 721 (2d Dept 2000), which does not persuade; further, the purposes for which Friedman, supra , 67 NY2d at 286, 502 NYS2d at 676 are cited are inapposite. Nor does the instant case involve an inherently dangerous roadside hazard like that of Hill v Town of Reading, 18 AD3d 913, 795 NYS2d 126 (3d Dept 2005).