Dispenza v State of New York

[*1] Dispenza v State of New York 2010 NY Slip Op 51157(U) [28 Misc 3d 1205(A)] Decided on May 13, 2010 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 13, 2010
Ct Cl

Nick Dispenza and BETH DISPENZA, Claimants,

against

The State of New York, Defendant.



106350



APPEARANCES:

For Claimants:

FRANCIS M. LETRO, ESQ.

ROBERT L. VOLTZ, ESQ.

For Defendant:

HON. ANDREW M. CUOMO

Attorney General of the State of New York

BY: THOMAS G. RAMSAY, ESQ. and

REYNOLDS E. HAHN, ESQ.

Assistant Attorneys General

For Third-Party Defendant:

BOUVIER PARTNERSHIP, LLP

BY: JOHN F. CANALE, ESQ.

Attorney for Nick Dispenza on the Counterclaim

Philip J. Patti, J.

On April 16, 2002, at approximately 8:07 a.m., Claimants Nick Dispenza and his wife Beth Dispenza were injured when the motorcycle on which they were riding skidded and fell near the intersection of Routes 5 and 20 in the Town of Caledonia. This action, which seeks compensation for their injuries, is based on allegations that the motorcycle went out of control when it encountered paint that had been applied by a New York State Department of Transportation (DOT) [*2]work crew and was still wet. Claimants assert that the State was negligent in failing to post warnings or take other precautions that would have prevented motor vehicles from coming into contact with the dangerously slippery, still-wet paint. In response to the claim, Defendant counterclaimed against Claimant Nick Dispenza, alleging that his own operation of the motorcycle was a proximate cause of the accident. Trial of this action was bifurcated, and this decision deals only with the issue of liability.

FACT WITNESSES

Claimants, who had traveled through this intersection several times in the past, both testified that on the morning of the accident they were traveling from their home in Tonawanda, New York, to the Finger Lakes area. They had no particular plans other than to take a scenic ride on a very nice day. Claimant Nick Dispenza, who indicated that he had 30 years' experience with motorcycles, was operating the 1997 Harley Davidson Road King, and his wife was sitting behind him. The motorcycle had been purchased by Claimant when it was new and was, he stated, in "perfect" condition, having just received its annual spring maintenance. Both Claimants testified that they observed no debris, dead animals or other obstructions on the roadway as they approached the intersection and pulled to a stop at the white stop line (Exhibit 3A). They saw several other vehicles on the roadways, but none of them belonged to DOT.

Nick Dispenza explained that Route 20, as it nears the intersection where the accident occurred, curves slightly to the left and then straightens out before reaching a stop sign and blinking light. The light flashes red for Route 20 and yellow for Route 5. Claimants' route of travel required them to turn right at the intersection onto Route 5 (which at that point becomes Routes 5 and 20 combined). Because they had traveled this route in the past, they were aware that their view of traffic coming from the left (i.e. from further west on Route 5) was partially obstructed by a guiderail and shrubbery. Since it was not possible to see very far down the road in that direction from the stop line, they had assessed that the safest way to proceed was to stay as far right as possible while making the turn. This allowed them to look back over their shoulders and double-check to see if there was oncoming traffic before pulling fully into the lane of travel (Transcript - pp. 898-899, 902, 976). Mr. Dispenza testified that he observed the white line on the edge of the road and that while he did not intend to cross it, he did intend to get as close as possible in order to obtain the best and safest possible view of eastbound traffic on Route 5 in the manner described.

When the motorcycle had completed the turn and Mr. Dispenza saw that the roadway behind him was clear, he accelerated and brought the motorcycle's speed up to approximately 15 mph. Almost immediately he realized that the motorcycle had "hit something different," and it went out of control.

I didn't know what I had hit, but I went over something, and all of a sudden, the bike started fishtailing and the next thing I know is the back wheel kicks out, the bike went down on the right side and it went down with such a force... that [it] flipped me over to my left. That bounced and I ended up on my right side and started sliding. [Transcript - p. 903.]

He stayed on the bike, feeling that it was safer to do so than to jump off. After the accident, and after his wife had been taken away by ambulance, Dispenza looked over his motorcycle and saw that there [*3]was paint "splashed up and on the rear tire" and all over the guard and edges of the sides (Transcript - 920; Exhibits 3G, 3H). He said that he had seen nothing unusual about the white line that caught his attention.

Beth Dispenza agreed with her husband about events leading up to the accident, but she had no further memory of the event. Her husband told her that she had been flung off the bike at some point while it was striking the pavement and flipping over. She identified photographs of her helmet and right glove that were taken after the accident and observed that both had traces of white paint, something that had not been there when she put them on earlier that morning (Transcript - pp. 966-967; Exhibits 33D, 33E, 33F).

A DOT work crew had painted the white side line at the location earlier that morning. The supervisor of the project was Rich "Junior" Johnson, who passed away prior to trial and his testimony had not been memorialized by deposition. James Snyder, who was subsequently appointed to fill Johnson's position, had been driving a vehicle known as the paint striper on the morning of April 16. Snyder, who had started working on the paint crew in 1999, testified that the project was carried out by a "train" consisting of three vehicles: the paint striper, the pickup or safety truck in which the supervisor rode, and the stake rack truck. This grouping was considered a mobile work zone and therefore did not use the flagmen, cones or barrels that are commonly seen at more stationary work sites (Transcript - pp. 320-321). Snyder described the signage that was on the vehicles as follows: the paint striper had a sign on the front saying "stay in lane" and one on the back stating "wet paint"; the pickup had a sign stating "stay in lane, do not pass" on one side, and "wet paint, do not pass" on the other; and the stake rack truck had two permanent metal signs, one saying "wet paint, do not pass" and the other an electronic message board that in this instance said the same thing.

On the date in question, Snyder was operating the paint striper, and DOT employees Jeremy Bellinger and Shawn Gillard were on that vehicle with him, operating the paint guns. Early in the morning the vehicles were driven 10 to 15 miles from the DOT residency to a vacant restaurant parking lot on the southeast corner of the intersection of Routes 5 and 20. Then they lined up on Route 20, and the supervisor, using his CB radio, told them when to move forward. The vehicle train was required to move at about 6 to 8 mph in order for the paint guns to operate properly, and typically they kept a distance of 500 to 1,000 feet between the vehicles (Transcript - p. 354). The actual work of the project started on the right edge of Route 20, went around the corner onto Route 5, and then proceeded straight along that road (the now combined Routes 5 and 20) to its intersection with River Road. At the River Road intersection, the vehicles would be turned around and sent back on the westbound lane of Routes 5 and 20, painting lines in that direction also.

From Snyder's perspective, the work proceeded as planned from the start and through the first part of the run. After consulting records of the painting jobs carried out prior to April 16, Snyder was able to say that the holding tank for the white paint was empty at the conclusion of their April 12 job and had been refilled for the April 16 work (Transcript - pp. 338-341). When the paint striper reached River road, Snyder pulled it into a parking area so that the vehicles could be turned around. The pickup truck arrived about two minutes later, at which time Snyder got out of the striper and went over to speak with Johnson. When the stake rack truck did not arrive soon afterwards, Johnson volunteered that "he was going to let the stake rack sit there for a few minutes extra just to make sure the paint was dry" (Transcript - p. 381). At that point Snyder estimated it had been about [*4]six to eight minutes since the first of the paint had been put down at the beginning of the run (Transcript - pp. 383-384). The two men continued to talk for approximately five to ten minutes more before Johnson used his CB radio to tell the workers in the stake rack truck to move ahead. At his deposition Snyder had stated that it took 15 to 20 minutes for the stake rack truck to reach them, explaining "I believe it was a cold morning and they left the stake truck sit on the corner for the paint to dry before they come around" (Transcript - p. 393).

According to Snyder, it is a superintendent's responsibility to determine if the paint was drying properly. When asked if it seemed the paint was taking an unusually long time to dry on this day, Snyder replied "If there was a reason why he left the stake rack back there, yes" (Transcript - p. 389). When Snyder was asked what a supervisor could do to determine whether paint was dry, he replied with respect to April 16, "He could have called the stake rack and ask[ed] him to get out and touch it or step in it, make sure it was dry before they come up and meet us" (Transcript - p. 390). As a supervisor Snyder himself would not normally take such action, however, because typically the time required for the entire vehicle train to pass a location would normally be long enough for the paint at that location to dry.

Snyder recalled seeing the motorcycle on the south side of Route 5, near the intersection with Route 20, on his return trip to the original starting point. He stated that although he had no recollection of the fact, he has been told that he used the CB to call back to let Johnson know that a motorcycle was down on the road. He continued driving up Routes 5 and 20 past the accident, and then turned left following Route 20 south and parked in the restaurant parking lot. He did not pay a great deal of attention to the downed motorcycle but recalled seeing a Caledonia police car at the scene. After parking the paint striper, Snyder was picked up by another DOT employee, Ralph Harmon, and they left to go to another work site, using a route that did not take them by the accident scene.

Snyder identified the two triangles in Exhibit 3A as being positioned next to the bright white line that had been painted earlier. He stated that, although over the years he has learned how to tell wet from dry paint by looking at it, by looking at the photographs he could see several instances of tracking.

Jeremy Bellinger, who operated the white paint gun on the paint striper, testified that he had started working at DOT in 2000, and was assigned to drive the stake rack truck. He was unable to recall any occasion when they had a particular problem with paint not drying, although there were times that the stake rack truck would be held back longer than ususal to allow it to dry (Transcript - p. 161). In his experience before and since the accident, however, 15 or 20 minutes would be an unusually long period of time for paint to take to dry (Transcript - p. 162). It was his understanding that the reason for keeping traffic off the wet paint was not so much because of safety concerns as it was to protect the painted line, particularly the glass reflecting beads contained in the paint, and to keep motorists from getting paint on their vehicles (Transcript - pp. 269-270).

On April 16, Bellinger's first task of the day would have been to clean his paint gun's tip, which he described as the "shroud and what makes the paint have its uniformity coming out of the end of the gun" (Transcript - p. 165). He would then have gone to the parking lot where the vehicle train was assembled, riding in one of the other vehicles. At the restaurant parking lot, he would get in place in the glass-enclosed cab where the person operating the paint gun was to sit. The cab has its own steering wheel to help align it with the main part of the striper, a switch that moves [*5]the cab up or down, and another switch that turns the paint gun on and off. Bellinger explained that the width and thickness of the paint was controlled by the paint gun and would have been calibrated at the beginning of the painting season for operation at the optimum speed of 8 mph.

On the day in question, Bellinger remembered that after the paint striper reached the River Road turnaround, the pickup arrived shortly thereafter, but then they all had to wait 15 to 20 minutes for the stake rack truck to appear. "[W]e were out of the trucks and communicating, talking, and they said that the paint was taking a while to dry" (Transcript - p. 216). One of the people he identified as saying this was Junior Johnson, the supervisor. When the stake rack truck finally arrived, "[a] couple of people said that man, that stuff is not drying" (Transcript - p. 219). He was aware of nothing unusual that would explain why the paint took so long to dry (Transcript - p. 178). Bellinger later said that he is able to tell if paint is wet or dry by looking at it but that it took him "a little while" to learn that skill, and that on occasion he has used his finger or the toe of his shoe to double-check (Transcript - p. 288). He would not expect an average person, one without his experience, to be able to make the determination visually.

On the return trip, Bellinger was engaged in painting a white line along the north side of Route 20 and at some point heard Jim Snyder use the CB to inform Junior Johnson that there was a motorcycle down. As soon as the paint striper was parked back at the restaurant parking lot, he got out and ran over to the accident scene to see if he could help, as he is an EMT. Both Claimants were already being attended to, so he mainly just observed and remained available to help until the ambulance arrived three to five minutes later. He saw the white line that had been painted earlier and said that "it looked pretty much dry to me" (Transcript - p. 247), but he did not pay any attention to the motorcycle and so could not say whether there was any paint on it.

Shawn Gillard, who also began working for DOT in 2000, was operating the yellow paint gun on the paint striper on April 16. He confirmed that the first task of the day would have been to clean the paint tips, which would have been soaking overnight. On most days, he stated, a test strip would be painted, at the residency or somewhere off the highway "so the personnel could see the width and the color" (Transcript - p. 33), but he could not recall if a test strip was painted on the morning in question. He also confirmed that the paint striper would travel at 6 mph to 8 mph, stating that the application would be too thin if they went faster. The initial drying time for paint used on the roadways was usually three to five minutes, and he could not recall another time when there was a problem with the paint not drying routinely (Transcript - p. 63). On April 16, as the paint striper returned to the beginning point, Gillard was in the left painting cab and thus could see the motorcycle as they passed the accident scene. He believed he may have seen it first, when it was about 100 to 200 feet away, because he was on the yellow side.

Thomas Drumstra was a DOT trainee on the day of the accident and rode in the pickup truck with Junior Johnson. It was only the second time he had been on a striping job. It was his understanding that the purpose of the safety truck (the pickup) was to stay a certain distance behind the paint striper "[s]o nobody would come behind you and then cross back over into the wet paint if we were painting yellow (Transcript - p. 678). His only clear memory of the day was seeing the motorcycle on its side and observing Bellinger cross over to the accident scene. He also remembered seeing white paint on the jacket of the motorcyclist, although he could not tell "how much the paint was messed up as far as the striping goes" (Transcript - p. 682). "I saw the bike down and I saw the driver's leather jacket, I figured that the paint had to have been run through with the [*6]bike and it would have made it so there was more than one mark on the road" (Transcript - p. 684). He did not know if anyone had gotten out of their vehicle to physically check to see if the paint was dry.

Harold Brown and Lee Wiand were the two DOT workers in the stake rack truck. Brown, the driver, had been a Trainee I for DOT for only three or four months at the time. He did not specifically recall the instructions they were given on that day but stated that normal practice was for the last truck in line to go to a fixed spot and wait until notified to move on. Asked whether the stake rack truck would begin to move as soon as it was at the designated distance behind the pickup truck, Brown replied, "It would depend on if the paint was dry because you're not going to move until the paint is dry or you then would generally then, the supervisor will usually tell you when to move" (Transcript - p. 600).

The day of the accident was only the second or third time that either he or Wiand had performed this particular job, and therefore neither of them would have had any independent authority to decide whether or when to move ahead. As it was, they received a call on the radio after 10 to 15 minutes, telling them to move up and join the other DOT vehicles. They had not gotten out of the truck at any point during that time. Brown did not recall ever being asked about the condition of the paint, and he was certain that they had not been instructed to get out of the truck and check the paint. He also could not recall if any traffic backed up behind the stake rack truck or whether a motorcycle was there. When the vehicle train made the return trip on the westbound lane of Routes 5 and 20, he was again instructed to hold the stake rack truck back until told to move ahead. On the return trip they waited five to ten minutes before being told to come ahead (Transcript - p. 620), and again, they were not asked to physically check to see if the paint was dry before moving from that location (Transcript - p. 621). The CB transmissions about the motorcycle accident came across while they were waiting for the go-ahead.

Brown stopped the truck opposite the accident site, either because of a traffic condition or simply to see what was going on, and got completely off the travel lane to the shoulder. When asked if he could tell whether the paint next to the accident was wet, Brown stated that it was, because "[w]hen the ambulance arrived, it drove across the line and tracked the paint" (Transcript - p. 635). Brown stated that it seemed like a normal day to him and, even in hindsight, he has no explanation for why the paint would still be wet after 30 or 40 minutes.

Lee Wiand, the passenger in the stake rack truck, testified that 2002 was his first spring with DOT and that he had no previous experience with painting or striping, although he received some training from Johnson during slow times over the previous winter. He had been on the two previous paint striping jobs, both times as the driver of the stake rack truck. Driving or riding in the stake truck was the typical beginning job for new employees. It was his understanding that the stake rack truck was a "[s]afety vehicle to keep people off the center line and the edge line" (Transcript - p. 472).

On the morning of April 16, Wiand and Brown were told before they pulled out of the restaurant parking lot that they were to stop and stay at a position just before Route 20 turns onto Route 5. "Junior wanted us to stay back because it was a short painting that we had to do" (Transcript - p. 498). It was standard procedure, Wiand stated, to stay back further if the weather was chilly, as it was on the morning in question, and to maintain the usual distance of three-tenths of a mile between vehicles when the weather was warmer (Transcript - p. 500). He also believed that [*7]the stake rack truck was told to stay back at that location because of the curved corner, which led some drivers to cut the corner and drive across the freshly painted lines. Wiand said that he was not present when Johnson gave his directions to the driver, so he did not know for sure if any reason was given for the direction to stay back.

Wiand maintained that, as a result of the training he had received from Johnson, he was able to tell if paint was wet or dry by looking at it from the truck (Transcript - p. 503), but he acknowledged that it was not left up to him as to when the stake rack truck should move away from its position. He also stated that he did not look at the paint to determine whether it had dried (Transcript - p. 544).

During the 10 to 15 minutes that they were waiting near the intersection of Routes 5 and 20, Wiand became aware of a motorcycle coming up Route 20 from the south. It stopped behind the truck and eventually four other vehicles stopped behind the motorcycle (Transcript - pp. 527-528). At first the motorcycle was in the middle of the travel lane, but after a few minutes, according to Wiand, it moved to the right to look, coming very close to the freshly painted line (Transcript - pp. 578-579).

At trial, Wiand testified that he had no memory of Johnson calling in on the CB radio to tell them to drive up and meet the other vehicles near River Road, although at an earlier deposition he had stated that Johnson would have informed them by CB. Wiand first heard of the motorcycle accident from a transmission over the radio. By the time they reached the location of the accident, he saw that Bellinger was at the accident scene and the paint striper was in the restaurant parking lot. He also observed that someone had "tracked up" the newly painted line and that there was white paint on the wheel of the motorcycle (Transcript - pp. 560-561; Exhibit 5). The stake rack truck pulled entirely onto the shoulder of the road, across from the accident scene, and waited for approximately 12 minutes until an ambulance arrived.

William Schneider, a police officer for 23 years and Chief of the Caledonia Police Department at the time of the accident, was working as a drug education officer on April 16, 2002. He was proceeding east on Route 5 in a marked police car when he became an eyewitness to the accident. He recalled the day as being sunny but cool, in the 60's. He first saw Claimants' motorcycle when he was about a third to a half mile away and observed that it was either stopped or moving very slowly at the intersection of Routes 5 and 20. Being familiar with that intersection, he knew that a vehicle turning from Route 20 onto the eastbound lane of Route 5 would be well advised to stay over on the right portion of the driving lane in order to increase their ability to see traffic coming from the west (Transcript - pp. 709, 777). As far as he could tell, the person operating the motorcycle was doing so in a normal, safe fashion. As the motorcycle made the turn onto Route 5, however, Schneider noticed the back end of the machine move strangely. "[T]he rear tire was not quite cooperating with what he was trying to do with the front of the motorcycle. It was going to the left and the right" (Transcript - p. 712). Almost immediately the motorcycle went down, falling close to the right side of the driving lane. On cross-examination, Schneider estimated the distance traveled by the motorcycle from the point that he first saw it having trouble to the point that he went down as 35 or 40 feet, and he confirmed that when the motorcycle began having trouble, its wheels were on or to the left of the fog line (Transcript - p. 754). Schneider could not recall whether there was any other traffic on the road and stated definitely that there was no DOT vehicle.

As soon as he arrived at the scene, Schneider pulled his patrol vehicle into the middle [*8]of the intersection and put on his lights, in order to protect the motorcyclists. He also called the Livingston County Sheriff's Department to report the accident. As soon as he got out of his car, Schneider stepped on the white fog line with his left foot and, as he put weight on that foot, it started to slide on the white paint. "I actually lost my balance and I had to use my car to keep myself from falling over" (Transcript - p. 720). When he looked down, he saw "wet bubbly thick white paint," some of which remained on the bottom of his shoe. After regaining his balance, he went to the aid of the motorcyclists and observed another individual, whom he later learned was Jeremy Bellinger, approaching. Looking over at the parking lot (shown on Exhibit 48), Schneider observed the yellow DOT stake rack truck parked there. A DOT pickup was stopped just in front of the motorcycle, at a location where apparently the supervisor had instructed it to go to help protect the scene.

Bellinger told Schneider that they had just finished painting white fog lines on the road, and Schneider observed white paint in a number of locations: on the jacket of the person on the ground, on her helmet, on the tire of the motorcycle, and outlining tire marks and footprints on the roadway (Transcript - p. 729). He himself stepped in the paint more than once and later observed some of the firemen step in it. He was able to identify some of the tracking as having come from motorcycle tires (Transcript - p. 730; Exhibit 3C). He and Sgt. Irving Barkan of the Livingston County Sheriff's Department, who arrived soon after, were able to identify marks in the paint that were consistent with the shape of the motorcycle's rear tire (Transcript - p. 731). Schneider remained at the scene for approximately 30 to 45 minutes, and the paint remained wet in places during that period of time. It was also thick and "bubbly," not the typical flat, quick-drying paint you frequently see being laid by paint stripers (Transcript - p. 733). Schneider told the DOT supervisor to remain on the scene, as he was sure that the Sheriff's Department would have some questions for him.

Sgt. Chad Draper, a Deputy Sheriff with the Livingston County Sheriff's Department at the time of Claimants' accident, was one of the people who reported to the scene in response to the report made by William Schneider. It took him approximately seven minutes to arrive and, as the first officer on the scene from the Sheriff's Department, he became the initial report taker (Transcript - pp. 787, 792). He testified that Chief Schneider told him the motorcycle had driven over wet paint and lost control, and Draper immediately decided to test the paint himself, by sliding his boot across it. "It was very slick, slimy would be the best way to determine it. Very slick and very thick" (Transcript - pp.792-793). It appeared to be thicker than the paint usually laid down for highway edge lines. Nick Dispenza also told him that the accident had occurred when his motorcycle touched the white line and then went sideways.

In Draper's opinion, Dispenza's account was confirmed by the white paint on the motorcycle's rear tire and sidewalls. In fact, Draper observed, "there was a continuous line [of paint] from there to where his bike ended and back to the line" (Transcript - p. 795). He saw other examples of paint being tracked, footprints and other tire tracks (Transcript - p. 803). Draper looked for other factors that might have contributed to the accident (such as the operator's condition and skill level, debris on the roadway, potholes or other defects, or swerving to avoid an animal) and found nothing other than the wet paint to explain what happened. Draper completed the accident report (Exhibit 8), which indicated that the weather was clear and the surface of the road in general was normal and he listed wet paint as the cause of the accident (Transcript - pp. 816-817).

Irving Barkan, a Livingston County Deputy Sheriff at the time of trial and a Sergeant on the day of the accident, also reported to the scene because, as supervising officer, it was his duty [*9]to go to the scene of any accident involving an injury. He parked in the restaurant's parking lot and walked to the accident site, where he observed that there was white paint on the motorcycle's rear tire and also tracks of white paint on the roadway. He unintentionally stepped on the white line. "I reached down and touched it and saw that the paint was still wet... wet, slippery, pasty" (Transcript - p. 835). When asked if the paint appeared wet only on the top, Barkan stated that it was wet all the way through; his footprint smeared the paint all the way down to the asphalt. He concluded at the time, based on what he observed and his experience since 1972 in investigating highway accidents, that the paint had played a factor in causing the accident.

EXPERT WITNESSES

Claimants' first expert was Jerome J. Thomas, a licensed professional engineer, who testified that he had held a number of positions with DOT and its predecessor agency, serving as a Regional Highway Maintenance Engineer and, from 1984 to 1990, as Director of Highway Maintenance Division, a statewide office that included, among other things, oversight of pavement markings. Pavement marking crews have some duties even during the winter months, he stated, when paint stripers are given a complete overhaul, tested and checked, and loaded for the coming work in the spring. New members of the crew are also given basic instructions.

Paint used for the pavement marking would be purchased by way of an invitation to bid. The paint that was used on the April 16 project was purchased by a bid that called for "fast drying acrylic water borne paint applied at a wet film thickness of 15 plus or minus 1 mil, reflectorized with glass beads . . . and dry to a no-tracking condition in three minutes or less when the paint temperature at the spray gun is 140 degrees minimum" given an ambient temperature between 55°F and 120°F and relative humidity of 80% or less (Transcript - p. 1023; Exhibit P, p. 15). This contract was awarded to Sherwin Williams in November 2001. Thomas noted that use of a water-based paint, rather than the more durable but more expensive epoxy, was appropriate for the rural location around the intersection of Routes 5 and 20, as traffic is fairly low there and the paint could be expected to last for a year.

Based on the records available, Thomas concluded that on April 16, 2002, the temperature and other conditions were suitable for use of this paint. The striper's paint tank holds 275 gallons and it is the practice to keep the tanks filled at all times. Since 275 gallons of white paint had been used on April 12, it is reasonable to assume that on the 16th all of the paint in the white tank was new (Transcript - pp. 1034-1036). All equipment would have been checked at the beginning of each work day, and typically a test strip is made to be sure that the paint guns are working properly. There was nothing in the records available to him, however, to indicate whether or not a test strip was done on April 16 (Transcript - pp. 1038-1039). He found no evidence to suggest that there was anything wrong with the paint being used.

One can only speculate, Thomas stated, about the reasons that it took up to ten times longer than the contracted time for the paint at the location of the accident to dry to a no-track condition. In his opinion, the most logical explanation is that there was some kind of contaminate mixed in with the paint. If a solvent such as toluene or antifreeze had been left in the lines from the previous night, the effect on any paint with which it came into contact would be to curdle and have a greasy, slippery appearance. If this had occurred and the supervisor became aware that the paint coming out of the guns was unusual, the steps he should take next would be determined by other [*10]information. If, for example, the paint returned to normal within 100 feet or so and he was convinced that all the improper paint had passed through the gun, it would not be unreasonable for him to allow the striping to continue, checking to make sure that all was functioning properly when the vehicle train made a scheduled stop, such as the one at the River Road intersection. "[T]he fact that he continued on, to me, would indicate that the contaminated paint had been expended out of the truck" (Transcript - p. 1059).

Thomas acknowledged that Johnson could have instructed the stake rack truck to remain behind for reasons that had nothing to do with paint drying. For example, he may have wanted the truck to stay in place because of the unusual intersection, to better warn approaching traffic. If the goal was to keep traffic from cutting across the lines at the corner, that could have been effectively accomplished by using cones or flagmen. Thomas stated that he considered the use of cones in pavement marking operations to be a "standard," particularly if a special situation such as a unique intersection or slow-drying paint is presented. He was aware of nothing in the Manual of Uniform Traffic Control Devices (MUTCD or the Manual) that would prevent cones being used in such work and it encourages the use of cones in unusual situations. In the situation presented on the day of the accident, "[b]ecause the paint was not drying, they should have put cones out to alert motorists that we have a situation here, it's not normal, stay away from the line" (Transcript - p. 1071). In Thomas's opinion, the appropriate standard of care in this situation would have been to remove the truck from the intersection, as it constituted a hazard itself, and use cones to keep traffic off the slowly-drying paint. "[B]y not putting cones out, they violated the safety criteria of highway maintenance that you have to make every effort to protect the traveling public, and in addition, they would also at the same time be protecting their own work product" (Transcript - p. 1073).

Thomas explained that Section 300.3 of the MUTCD sets out the different types of work classification that may be carried out in connection with highway maintenance. Of possible relevance here would be three of the five categories: (1) work vehicle work, in which the work vehicles are continuously moving and no vehicle is parked; (2) mobile work, in which a work vehicle is parked for a brief period of time and traffic is controlled by vehicle equipment, flaggers, traffic control devices, or a combination of such things; and (3) slowly-moving work, in which the vehicles are going slowly enough that they can make use of flaggers. Ordinarily, pavement marking is considered work vehicle work, as all of the vehicles are in continual motion. This type of work does not involve the use of flags, cones or other stationary objects; traffic is controlled by signs and warnings on the vehicles themselves. By telling the stake rack truck to remain parked in a fixed location for a period of time, however, Johnson converted the operation to mobile work, where use of equipment, flaggers and other devices such as cones is appropriate and often necessary (Transcript - pp. 1081-1082).

Another departure from safety practices authorized by the Manual was removing all vehicles from the location before the paint was dry enough for traffic. For example, leaving "a wet slimy pavement marking in that area and have no type of warning to the public, because all the equipment is gone," would be a violation of Section 302.18 (Transcript - pp. 1083-1086). If the truck left before the paint was sufficiently dry for traffic, then cones or some sort of warning should have been left at that location. Thomas further concluded that for at least the initial portion of the edge line the paint was applied more thickly than the 15 mils called for in the specifications. This conclusion was based on testimony describing it as thick and slimy, the distance that it had been [*11]tracked in the photographs and the fact that if the paint had contaminants, its viscosity would be less than intended and therefore the pressure of the paint gun would expel more than the usual amount of material (Transcript - pp. 1099-1100).

On cross-examination, Thomas confirmed that he had never personally been involved in directly applying pavement markings, that he had no reason to believe the paint used in the instant operation was not properly prepared, and that overall the weather and the three-vehicle train procedure for applying the pavement lines on April 16 were appropriate. He also acknowledged that at the beginning of the day, if the DOT crew anticipated their work would be normal work vehicle work, they would not have had reason to anticipate that other equipment such as cones was going to be needed. Nor would they have had any reason to anticipate that the paint would take up to 30 minutes to dry, as that would be an almost unheard of event.

John Serth, Jr., called on behalf of Claimants, is a professional engineer who worked for DOT in the 1980's and specializes in transportation, specifically highway transportation. After reviewing the materials produced in connection with this accident and visiting the accident site, Serth concluded that the motorcycle came into contact with wet paint, because the paint was splattered on the vehicle and dry paint does not spatter (Transcript - p. 1173). With respect to the normal three-vehicle train used to apply lines on the sides of highways, he stated that having the vehicles travel 8 mph and maintain a distance of two-tenths of a mile between them means that by the time the last vehicle passes a particular spot, the paint at that location would have been applied three minutes earlier and would be sufficiently dry for traffic to cross over it.

In Serth's opinion, the process used on April 16 was not routine in that the last vehicle was required to wait approximately 20 minutes before moving along the path taken by the other vehicles: "what this non-routine operation shows is that it was foreseen that this paint was not the normal paint and that it was not going to dry" (Transcript - p. 1176). Serth's conclusion about the reason for directing the stake rack truck to remain at the starting point for such a long time was based on the testimony of the other witnesses about Johnson's decisions. "That's what his actions are showing. That stake rack truck was told to sit there. Junior knew" (Transcript - p. 1180). When asked about one possible contaminant that had been mentioned, Serth stated that antifreeze evaporates much more slowly than water and that he had no knowledge of what would happen if paint was to be combined with antifreeze. In any event, it is not necessary to know why the paint was not drying properly since, whatever the reason, the actions of the supervisor show that he was aware that was the case. If it is known that a hazard exists and steps are taken to warn people of the hazard (leaving the stake rack truck in place), then "before that truck is released from that place, should one determine whether the hazard still exists?" (Transcript - p. 1210).

Serth, who has experience in accident reconstruction and is licensed in that speciality in Canada, believed that Claimants' accident happened when the motorcycle, traveling at a reasonable speed, went into the curve. The front tire crossed over the freshly painted line at a shallow angle, moving from the travel lane onto the shoulder, with no problem (shown on Exhibit 3F). The rear tire, however, "is hung up on the line because there's lower friction with the slimy paint and it slides down the line for a long distance" (Transcript - p. 1191). The rear tire, in effect, was trying to cross the line but could not and wound up slipping along the line for more than 20 feet (shown in Exhibit 3B). It makes sense that the rear tire would get hung up while the front tire made it safely across the line, Serth explained, because the driver was accelerating at the time, causing the [*12]rear tire to require more force in order to move than the front tire had (Transcript - p. 1199). As the rear tire slips, the motorcycle leans more and more toward the right to the point that there is some contact with the ground and paint goes up the sidewall of the tire (shown in Exhibit 3H). When the rear tire finally moves off the paint line and grabs traction, that flips the motorcycle to the left side. It was probably at this point that the passenger was lost, because suddenly the motorcycle moved back to the right and finally comes to a rest. Exhibit 3C shows that the passenger fell onto the paint line, transferring some of it to her helmet; this is the location where she would have fallen if the motorcycle's rear tire was just to the side of that line. All of this happened very quickly, within three to four seconds according to Serth's calculations (Transcript - p. 1231). Serth could find nothing to indicate that the driver of the motorcycle did anything to contribute to this accident or that he should have done something that would have prevented it (Transcript - p. 1210).

On cross-examination, Serth acknowledged that the hatch marks on the shoulder at the corner were meant to indicate that motorists should stay out of that area, but, he stated "with pavement, if you build it, they will come" (Transcript - p. 1226). Even if it wasn't meant to be driven on in the ordinary course, it was still considered part of the pavement and the wet paint constituted a hazard in the pavement area. At this location the main purpose of the hatch marks would have been to keep vehicles from passing one another due to the unusually shaped intersection. There should have been nothing dangerous about traveling on that part of the pavement.

Greg Mancini, a 28-year employee of DOT, was called by Defendant. He testified that for 16 years he served as the special crew coordinator/pavement marking manager for Region 5, which meant that anything to do with pavement marking came through his office. He explained that in the 1990's, due to government regulations, DOT discontinued the use of oil-based or alkaloid-based products for road markings and began using either water-based paint, which had to be reapplied every year, or epoxy, which would last for three years. He confirmed that the invitation to bid for the water-based paint used in this particular project (Exhibit P) required that the product have a "no-track time" of three minutes. "No track time is the time it would take from the actual application of the stripe to the time where a vehicle, if it traversed across the stripe... would not track the product" (Transcript - p. 1255). He explained that the paint would not be completely dry at the end of the no-track time but that there would be a skin over the stripe allowing a tire to cross it without picking up the wet paint underneath the skin.

Mancini said that in general the paint on a highway edge stripe is 10 to 14 mils thick [FN1] when it is first put down. In order to facilitate drying, the temperature of the paint is 80° to 100° as it comes out of the paint gun. The temperature inside the tank is maintained by the circulation of antifreeze within the line. The paint and antifreeze do not come in contact with each other within the tank. The top surface of the paint should dry quickly, through the evaporation of water once it meets the outside air, and in three minutes a skin should form. The paint being used on the April 16, 2002 project was Sherwin Williams TM-2174, which met these specifications.

Mancini described the vehicle train used in a striping project and said that the primary purpose of the last vehicle, the stake rack truck, was to warn motorists of the slow moving vehicles in front of it by use of a message board and several orange and black signs. None of these trucks ever carried cones, he stated, because by the time the last DOT vehicle drove away, the surface of [*13]the paint should be sufficiently dry so that it would pose no hazard.

It would not be uncommon, Mancini stated, for a stake rack truck to "hang back" or stay behind while the rest of the train traveled on ahead. There could be various reasons for this: "the volume of traffic, the temperature... of the day, the configuration of entering vehicles or anything of that sort" (Transcript - p. 1268). He saw nothing wrong with a supervisor asking the stake rack truck to remain behind for a period of approximately 15 minutes, particularly on a short run, such as the one-half mile that was to be covered by the work crew on April 16. When asked on cross-examination to explain why someone might have told the stake rack truck to hold back and then directed it to move on without checking to see if the paint was, in fact, dry, Mancini said that the supervisor may simply have been wanting to allow sufficient time for the paint to dry and for the reflecting beads within the paint to settle at the right location before anyone could drive over it.

Asked to speculate about paint that did not dry for a period of 15 minutes or more, Mancini simply said that he had never encountered such a situation. The suggestion that the antifreeze somehow became mixed in with the paint would involve "a catastrophic failure of some sort" that would be "way beyond normal practice" (Transcript - p. 1272). The only thing he could speculate was that a vehicle might have crossed the painted line during the no-track time and pulled the skin off the top.

Defendant also called DOT's former Roadside Engineer, Richard McKeon, who had been in charge of pavement marking statewide for many years. He identified the appropriate guidelines for this work found in the MUTCD Section 300.3(h)(l)(i) classifies pavement marking as "work vehicle work," for which there is no requirement that any traffic control devices be used, although a vehicle "may" be stationed to provide warning if the work vehicles occupy a full travel lane. There is no requirement that cones or other stationary warning devices be employed in connection with a pavement marking project (Transcript - p. 1473). The distance between the pavement marking vehicle and the last vehicle of a convoy is governed by the trucks' speed and the drying time of the paint (Exhibit F), as the last truck is supposed to pass by the freshly painted line when it is sufficiently dry to be protected from smearing and to protect motorists from the danger of wet paint. The distance between vehicles is also governed, however, by the needs of the specific situation and the judgment of those directly on the job. McKeon acknowledged that it would be bad practice to leave wet paint unguarded, that motorcycles would be more susceptible to slippery substances in the road, and, when shown the photographs of the accident scene and the evidence of tracking, that any tracking shows "the paint didn't have enough time to get to the no-track condition."

Patrick Galarza, the State's paint expert and another DOT employee, testified that the water-based paint used by the road crew on April 16 typically has some sort of additive that aids in developing the initial "set" or "skin" of the outer layer as it evaporates (Transcript - p. 1496). The skin is paint that starts to coagulate, getting hard or gummy, and it is the skin that protects the paint underneath and creates the no-track time. If the skin is broken or stirred up, the wet paint underneath is exposed and this time it takes longer to develop a skin and start drying because there is less additive in the paint that remains and because it is now cooler. Galaraza stated, however, that he had never seen a highway paint line that took up to 40 minutes to dry. He had seen paint that was as much as two times the standard 15-mil thickness take up to 15 minutes to dry, but that was a very unusual situation in which they were conducting research. Possible explanations for the extraordinarily long drying time could include, he stated, extremely thick application, road [*14]conditions, or contamination by solvents, but those were only theoretical possibilities.

Dennis Toaspern, a motorcycle reconstruction expert testifying for Defendant, testified that in his opinion Claimant could have recovered from the loss of balance in time to keep from falling, either by steering into the slide or by accelerating and steering into it even more. He acknowledged, however, that this was a technique only an advanced rider should try (Transcript - p. 1365). He based his conclusion that recovery would have been possible on the absence of any paint residue on the motorcycle's front tire (Transcript - pp. 1364, 1387) and on his belief that the paint had "skinned over" before there was any contact with the motorcycle and that the rear tire caused the skin to break. Once there was contact between the rear tire and the wet paint, however, recovery would have been much more difficult and the accident possibly unavoidable (Transcript - pp. 1387-1388). Toaspern specifically denied that he had ever concluded the motorcycle fell before encountering the paint, as had been stated in a discovery response submitted by defense counsel.

Toaspern also faulted Nick Dispenza for putting his motorcycle on the extreme right edge of the roadway, a move that reduced his chances of recovery if there was any sort of problem. He did not consider the sight distance looking west on Route 5 from the intersection to be hidden or unduly obstructed. On cross-examination, he acknowledged that the motorcycle was on a portion of the road where it was legally entitled to be on and that there was nothing to suggest any mechanical problem with the motorcycle or any significant defect on the roadway itself. When asked how long a time passed between the point that the motorcycle lost traction and the accident was over, Toaspern estimated that it would have been only two to four seconds. The passenger abruptly leaving the motorcycle would also have some effect: "It complicates [the attempt to regain control] slightly, but it doesn't make it an impossible task" (Transcript - p. 1418). In response to a question posed by counsel for Third-Party Defendant, he agreed that if the paint were dry there would have been no accident (Transcript - p. 1443).

APPLICABLE LAW AND DISCUSSION

The State of New York has a nondelegable duty to maintain its roadways in a reasonably safe condition, and breach of this duty will result in liability to the State for injuries caused thereby (Friedman v State of New York, 67 NY2d 271). This duty also encompasses care in constructing any shoulders that the State chooses to provide (see Stiuso v City of New York, 87 NY2d 889, 891; Bottalico v State of New York, 59 NY2d 302, 305-306) and maintaining them for foreseeable uses, including those resulting from a driver's negligence or any emergency (Stiuso v City of New York, 87 NY2d 889, 891, supra).

The State is not an insurer of the safety of its roadways, however, and the mere fact that an accident occurred does not render the State liable (see Tomassi v Town of Union, 46 NY2d 91; Brooks v New York State Thruway Auth., 73 AD2d 767, affd 51 NY2d 892). In order to establish that the State is liable for a claimant's injuries, there must be proof that the State created a dangerous condition or had actual or constructive notice of a dangerous condition, that it failed to properly act to correct the problem or warn of the danger, and that such failure was a proximate cause of the claimant's injuries (see Brooks v New York State Thruway Auth., 73 AD2d 767, affd 51 NY2d 892, supra; Bernstein v City of New York, 69 NY2d 1020; Gordon v American Museum of Natural History, 67 NY2d 836, 837; Wingerter v State of New York, 79 AD2d 817, affd 58 NY2d [*15]848).

In the instant case, there is no dispute that the paint on which Claimants' motorcycle skidded was provided by and placed on the roadway by DOT and that the condition of the paint and the absence of any warning presented an unacceptable danger to motorists and their vehicles.[FN2] Where a defendant has created the dangerous condition causing a claimant's injuries, the notice requirement is satisfied, because creation of the hazard is deemed to be actual notice (Mercer v City of New York, 223 AD2d 688, 690, affd 88 NY2d 955; Lewis v Metropolitan Transp. Auth., 99 AD2d 246, 249, affd 64 NY2d 670; Terry v State of New York, 21 Misc 3d 1124[A], affd 39 AD3d 846; Clarke v State of New York, 24 Misc 3d 1226[A]). There is also no dispute that the State failed to take any action to remedy or warn of the danger it had created and likewise no dispute that a proximate cause of Claimants' motorcycle accident (indeed, the chief and perhaps sole cause) was the presence of the unguarded wet paint on the roadway. These facts and conclusions are sufficient to prove the elements necessary to impose liability on the State for Claimants' injuries.

Defendant makes several arguments, however, that it contends relieve it of such liability. Implicit in most of these arguments is an assumption that liability cannot and should not be imposed where the State was not aware or had no reason to suspect that the condition it had created posed a danger. Much is made of the fact that paint remaining wet for 15 or 25 minutes or even longer was so unusual that the workers would have no reason to take any action to confirm that the paint was dry enough for traffic or to warn of possible danger. There are several problems with this argument.

First, it attempts to impose the requirement of actual or constructive knowledge to dangers created by the Defendant in the same manner that it applies to those created by other forces. Defendant does not cite, and research has not disclosed, any decision holding that a defendant may create a dangerous condition but nevertheless avoid liability for injuries it caused because it was not fully aware of or did not appreciate the danger. In response to the implicit argument that it is somehow unfair to hold a defendant liable for not taking steps to protect from an injury it did not foresee, is it more fair to require the unsuspecting party who was injured by that hazard to absorb the loss? Here, Defendant had a duty to keep its roadways reasonably safe for motorists and, instead of fulfilling that duty, it created a situation that was unsafe for those motorists. Claimants had a duty to operate the motorcycle in a responsible fashion and to obey the rules of the road, and they met this obligation. Since one of those parties will be responsible for the consequences of Defendant's failure to fulfill its duty, it has to be, in my opinion, the Defendant.

In any event, in the instant case, there is good reason to conclude that the danger created by wet paint is always foreseeable whenever pavement marking is done and that, in the instant case, the State workers should have known, or perhaps actually knew, of the dangerous [*16]condition that had been created. One of the chief goals of the pavement marking operation and one of the chief duties of the crew carrying out that operation is to assure that the paint is dry before traffic is allowed to drive over it. The specific drying time requirements of the paint specified in the invitation to bid and the arrangement and timing of the vehicle train establish that this is so. Although there was little testimony about the function of the middle vehicle, the pickup truck in which the supervisor rides, it was referred to by several witnesses as the "safety truck." While it clearly served one purpose in keeping traffic from passing the stake rack truck and driving over the freshly painted line, the presence of the supervisor and the absence of any other assigned task for the person in that vehicle strongly suggest that his role is to look at the work being performed and make sure that all is proceeding as it should. The worker or workers in the stake rack truck logically have the same responsibility to at least look at the work that was being performed. In other words, the entire work crew had a duty to pay attention to the job being performed and the work product being created.

Because no one, except possibly Mr. Johnson, actually looked at the edge line, it is impossible to know for certain what they would have seen. However, in my opinion anyone in the painting party paying attention to the edge line would have noticed something irregular about the paint that was laid down in the area of the intersection where the painting began. While it may be agreed that it is impossible for someone without training to distinguish between wet and dry paint when the paint in question is normal and it is applied normally, I find it hard to believe that paint described as "thick," "bubbly" and "slimy" a half hour or more after its application would look absolutely normal when it is applied, even to an untrained layperson. This is particularly true if, as the evidence indicates, the paint was different and defective only on that initial portion of the edge line, as the contrast between this section and that immediately beyond it would make it even easier, I believe, for someone without training to see enough of a difference to prompt a more direct investigation. Admittedly, there was no testimony one way or the other about the condition of the paint at any other location, but if there had been a similar problem with drying along the entire run (from the intersection all the way to River Road and then back along the westbound lane), it would inevitably have been noticed by one of the many individuals on the scene, some of whom were specifically investigating the accident, and in all likelihood it would have caused other mishaps (accidents, people slipping, paint spattered on vehicles or smearing of the edge line) somewhere along that length.

According to James Snyder, the pickup truck arrived at the River Road location some six to eight minutes after the first paint was laid down; the paint striper had arrived there two minutes earlier. This was already two to three times the normal time allowed for the paint to dry, and because all other vehicles were now off Routes 5 and 20, any other reason for directing the stake rack truck to stay behind was no longer operative. Nevertheless, Johnson waited another 10 to 15 minutes before calling for the truck to proceed down the road. Unless there was concern about the time needed for the paint to dry, a concern created by some irregularity he had observed, there is no other explanation for this additional delay. This conclusion is buttressed by the memory of several of Defendant's witnesses that there were comments about paint drying being the reason for their waiting at the turnaround.

Unfortunately, Junior Johnson passed away before having the opportunity to describe what he saw or explain his decisions, but the most logical sequence of events incorporates the [*17]hypothesis of Claimants' expert Jerome Thomas as to the cause for the paint's unusual drying time. If there was some contaminant in the pipes or nozzle of the white paint gun, perhaps a solvent that had been used for cleaning the apparatus, the interaction of that contaminant with the paint could have caused a visibly abnormal result (such as paint that was unusually thick and curdled, or paint so thin that the gun's pressure ejected more than the normal amount of material) that was present only for the first several yards of the edge line, at the beginning of the run. If Johnson had seen that something was wrong but then realized that, whatever the problem, it had quickly disappeared, he might well have decided against interrupting the run, a costly and time-consuming step, and instead to keep the questionable area protected by the presence of the stake rack truck for a much longer time than normally needed for the paint to become safe for traffic. Why did he not go one small step further and direct Brown or Wiand to at least look at the painted line, or perhaps get out and touch it, must remain an unanswered question. Consequently, although the law does not require proof of actual or constructive knowledge when the dangerous condition has been created by Defendant, there is support in the record for a finding that there was such notice in this instance.

Defendant's principal argument is that it bears no responsibility for the accident because its work crew did not violate any of the provisions of the MUTCD. If there was no such violation, this argument goes, then its actions were not negligent, and without negligence there can be no liability. I agree that, by and large, the workers complied with most of the specific and relevant requirements of the Manual, but I do not agree that this absolves the State of any liability in the matter. Beyond all the specifications and requirements contained in the MUTCD, beyond the question of whether this was "work vehicle work" or somehow transformed into "mobile work" or similar issues, the State has a primary, common-law duty to exercise due care and provide reasonable safety for motorists on its highway. Paying enough attention to what is happening to assure that an important condition of the work (having paint sufficiently dry for safe travel before traffic is allowed) is an implicit part of that duty. When an unexpected, unforeseen event occurs and creates a danger, particularly when Defendant causes that event, then taking steps to correct or warn of that condition is part of that duty of due care. Thus, it is possible for the State to comply with all the specific, particular requirements of the MUTCD and still be negligent.

The authorities cited by Defendant do not persuade me otherwise. Hicks v State of New York (4 NY2d 1) is cited for the proposition that compliance with the MUTCD is prima facie evidence of the lack of negligence. However, that decision's full statement on the issue of negligence, of which defense counsel quotes only part, is this:

There being no special circumstance, e.g., inadequate sight distances, requiring a "stop" sign, the placing of a route sign rather than a "stop" sign was in compliance with the requirements and does not constitute negligence on the part of the State. [4 NY2d at 8.]

Also critical to the holding in that case was the Court of Appeals' finding that the absence of a stop sign "had no bearing on the happening of the accident" (id at 7). In other words, in addition to compliance with the MUTCD's requirements, it was also necessary for the Court to determine whether there was a causal connection between the State's actions and that claimant's injuries. In Long v Cleary ( 273 AD2d 799), the Fourth Department observed that the defendant City was not required by the MUTCD to place skip lines on a certain street, but the result in that case, once again, was based on the absence of a causal connection between defendant's actions and the injury: "The [*18]record is devoid of proof that the City's negligence, if any, was a proximate cause of the accident and plaintiff's resulting injury..." (id. at 800). The finding that the City had complied with the Manual did not eliminate the possibility it might have been found negligent. Finally, in Niles v State of New York (201 AD2d 774, 776), the Third Department stated, "we see no reason to disturb the Court of Claims' finding on the adequacy of the signage, particularly where the evidence showed that it was within the range of discretion sanctioned by the Manual." In other words, compliance with MUTCD can support a finding that the State was not negligent but it is not, in and of itself, proof that there was no negligence. Therefore, Defendant's apparent compliance with specific requirements of that Manual in the instant case does not decide the matter.

The State also argues that Claimants may not recover unless they prove that Defendant acted with "reckless disregard." This is the standard imposed by Vehicle and Traffic Law §1103, which applies to motor vehicles that are "actually engaged in work on a highway." The statute exempts the drivers of such vehicles from the requirements (other than alcohol and drug-related requirements) of Title VII of the Vehicle and Traffic Law unless they act with reckless disregard. Title VII of the Vehicle and Traffic Law, which is entitled "Rules of the Road," pertains to the actual operation of motor vehicles and includes requirements relating to such things as obeying speed limits, maintaining the right-of-way, obeying traffic signs, and carrying out certain practices in connection with passing, turning, standing, stopping and parking of vehicles. None of the allegations of wrongdoing in this case relate in any fashion to the manner in which the State workers operated their various vehicles.

Finally, there is the counterclaim which seeks to avoid or at least limit the State's liability by establishing that the actions of Claimant Nick Dispenza were a proximate cause of the accident. I find that they were not. His operation of the motorcycle up to the point where it encountered the wet paint was proper and unremarkable, as established by his own testimony, the eyewitness account provided by Chief Schneider, and the conclusions reached by those charged with investigating the accident. The speculation of Defendant's expert that there were certain specific movements that he could have employed during the few seconds between the moment that the paint was first encountered and the moment that the motorcycle crashed to the ground is unpersuasive. Even Toaspern acknowledged, in somewhat contradictory fashion, that once the rear tire encountered the wet paint, recovery would have been difficult if not impossible, but until that moment there was no reason for Claimant to make any effort to recover. Claimant's decision to put his motorcycle as far to the right as possible, also criticized by Defendant's expert, appears in this instance to have been a sensible and prudent course of action because of the limited view of eastbound traffic. Consequently, Nick Dispenza is free of any fault in connection with the happening of this accident.

In conclusion, I hold that Defendant State of New York created a condition that posed an unacceptable and unreasonable risk of harm to motorists, that it failed to correct or warn motorists of the danger, and that the dangerous condition so created was the sole proximate cause of Claimants' accident and resultant injuries.

The Chief Clerk is directed to enter judgment in favor of Claimants on the issue of liability and to dismiss the counterclaim.

All motions not heretofore ruled upon are now denied.

A trial on the issue of damages will be scheduled as soon as practicable.

LET INTERLOCUTORY JUDGMENT BE ENTERED ACCORDINGLY.

May 13, 2010

Rochester, New York

Philip J. Patti

Judge of the Court of Claims Footnotes

Footnote 1:A paperclip is 12 mils thick.

Footnote 2:I reject the suggestion that the paint was without defect and properly applied and that its condition at the time of the accident arose because some vehicle, either Claimants' motorcycle or an earlier vehicle, had "ripped off" the skin that had formed. Even if that had happened, and even if a second drying time would have been longer than the original three minutes, this does not explain how, even 30 or 40 minutes after application, the paint would still be so wet that it splashed on vehicles, caused people to slide and almost fall, and be described as thick, bubbly and slimy.