Vertetis v State of New York

[*1] Vertetis v State of New York 2010 NY Slip Op 52472(U) Decided on April 14, 2010 Ct Cl Milano, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 14, 2010
Ct Cl

Lori Vertetis, Individually and as proposed Administratrix of the Estate of EDWIN M. VERTETIS, Claimant,

against

State of New York,

[FN1] Defendant.

114729



For Claimant:

MAINETTI, MAINETTI & O'CONNOR, P.C.

By: Joseph E. O'Connor, Esq.

For Defendant:

HON. ANDREW M. CUOMO

New York State Attorney General

By: Kent B. Sprotbery, Esq., Assistant Attorney General

Frank P. Milano, J.

This matter was brought to trial by reason of a tragic event which resulted in the death of Edwin Vertetis, who, as a pedestrian, was struck by a vehicle operated by an on-duty New York State Police Trooper at approximately 11:40 p.m. on the evening of January 6, 2008 on State Route 9W in Saugerties, New York.

Late on the evening of January 6, 2008, New York State Police Trooper Thomas Farrell was on routine patrol in Saugerties. He was driving a marked State Police vehicle, a 2006 Ford Crown Victoria. Shortly after turning onto State Route 9W, while traveling southbound (SB) on 9W, Trooper Farrell struck Edwin Vertetis, who was walking toward Trooper Farrell in the SB lane of traffic at the moment of impact, resulting in Mr. Vertetis's death. Mr. Vertetis's administratrix, Lori Vertetis, brought this claim.

Mr. Vertetis had, for between five and ten minutes prior to the accident, been walking [*2]northbound (NB) on 9W facing Trooper Farrell's path of travel, walking up the double-yellow line in the middle of the road. He would periodically stray off the double-yellow line. His actions during this time period were viewed by trial witness Joshua Weaver, the only eyewitness (other than Trooper Farrell) to the accident.

Mr. Weaver, in his truck, had earlier passed Mr. Vertetis as Mr. Vertetis was walking in the middle of the road. Mr. Weaver pulled to the side of the road and phoned the Town of Saugerties Police Department to report his observations of Mr. Vertetis. Mr. Weaver then stopped his vehicle twice more, eventually parking it on Manor Lane, parking at Manor Lane's intersection with 9W and parked perpendicular to 9W.

From this vantage point, looking to his right in a southerly direction, he observed, from several hundred feet away, Mr. Vertetis walking NB on the double-yellow line for several minutes. At some point, looking to his left in a northerly direction, he saw Trooper Farrell enter 9W and begin traveling toward him in the SB lane. Mr. Weaver had immediately identified the vehicle as a State Police Troop car due to its markings, and estimated that Trooper Farrell entered 9W approximately 500 feet north of his vantage point. Manor Lane is situated at the start of a gradual left-hand curve (for SB travelers) on 9W, and afforded Mr. Weaver a viewing location from which he could see several hundred feet in each direction, north and south, of the 9W roadway. Alternating his view north and south, he could see, respectively, both Trooper Farrell and Mr. Vertetis.

He observed the Troop car, in the SB lane, travel toward him and eventually pass in front of him. At a point approximately 150 feet farther south on 9W, Trooper Farrell's car struck Mr. Vertetis. Although Mr. Weaver did not see the impact, the Troop car having come between Mr. Weaver and his otherwise unobstructed view of Mr. Vertetis, Mr. Weaver heard the impact, and observed the Troop car's brake lights first lighting at the moment of impact, simultaneous to the sound of impact.

The evening of January 6, 2008 was dark and cloudy. The area immediately adjacent to the point of impact has no roadside streetlight. The nearest streetlight is a few hundred feet north of the accident site and no trial evidence was received concerning whether that light was lit at the time of the accident. Although there are some nearby businesses, including a Sunoco gas station directly in front of the accident scene (and there were conflicting witness accounts about whether or how many of the several nearby Sunoco parking lot light poles were lit at the time), trial witnesses uniformly described the night as dark and further described the ambient light of the nearby businesses as dim. No measurements were taken, indeed no specific testimony was given, which would have indicated whether, or in what amount, the point of impact on 9W was illuminated by anything other than the headlights of the vehicles traveling the road.

Some witnesses alluded to foggy conditions in the general area during the course of the evening. Others were unequivocal that there was no fog, and that other than the darkness of the evening, there existed no impairment to motorist visibility due to weather conditions at the time and location of the collision. The Court adopts the latter testimony (supported by documentary evidence) as a finding of fact.

Certain other portions of Mr. Weaver's testimony were relevant. Upon initially observing Mr. Vertetis in the middle of 9W, he further observed seven or eight vehicles pass Mr. Vertetis, avoiding him without incident or apparent difficulty by deliberately moving from the middle of [*3]the road toward the shoulder. All of these cars were bunched, in a line, and executed their maneuvers within seconds of one another, succeeding cars no doubt able to view and react to the maneuvers of the cars preceding them. After that, for the next five to ten minutes, no other cars approached or passed Mr. Vertetis on 9W, until Trooper Farrell's approach. Given the passage of time and that Mr. Vertetis continued to walk NB on 9W, Trooper Farrell did not encounter Mr. Vertetis at the same location in the road where the previous seven or eight vehicles had.

Further, as Mr. Weaver sat ultimately parked on Manor Lane, observing, from a distance of several hundred feet, Mr. Vertetis continue to walk NB up the double-yellow line for several minutes, he readily acknowledged that he lost sight of Mr. Vertetis several times, once for between 45 and 60 seconds, due to the darkness of the evening, even as Mr. Weaver remained stationary and even as his attention was exclusively focused on attempting to watch Mr. Vertetis walk north on 9W. He described being able to discern a figure walking, sometimes silhouetted by ambient backlight, with moving arms and body.

The accident occurred at approximately 11:40 p.m. Mr. Vertetis was Caucasian, and, based upon various accident scene photographs admitted as exhibits, did not appear to be a small man. He was wearing white sneakers, traditional denim blue jeans and a dark blue sweatshirt. Although at several turns, claimant's counsel sought to have the blue jeans characterized as "light" colored, a simple viewing of the clothing worn by Mr. Vertetis at the time of the accident (Exhibit 44), will indicate that it can fairly be said that on the evening of January 6, 2008, Mr. Vertetis was wearing dark clothing without any reflective material.

At the time of the accident, Mr. Vertetis was intoxicated.

Trooper Farrell was on routine patrol. He was unaware that the Town of Saugerties Police Department had been notified of a pedestrian walking in the middle of 9W. Entering Route 9W a short distance north of the accident site, he proceeded SB. About 150 to180 feet before the point of impact, he traversed a gradual left-hand curve in 9W (in the process, passing a parked Mr. Weaver), depicted in Exhibit 6 as a view from the north looking south and depicted in Exhibit 2 as a view from the south looking north. Each exhibit is marked in red to approximate the point in the road where the collision occurred. While depicted in the aforementioned exhibits, this area of the road is most realistically depicted from the SB driver's viewpoint by the lower right-hand photograph of Exhibit 36. Trooper Farrell declined to estimate his rate of speed except to say he was "at a slow speed," and below the posted speed limit of 40 mph. His assessment as to speed was confirmed by Joshua Weaver, who estimated Trooper Farrell's speed to have been between 30 mph and 35 mph, and by an expert witness for claimant, Peter Scalia, a retired State Police accident reconstructionist, who estimated Trooper Farrell's speed at the time of the accident to have been between 25 mph and 30 mph.

Trooper Farrell's testimony concerning the accident was brief, essentially reducing to that he never observed Mr. Vertetis until an instant before striking him ("a matter of feet"), and that he never applied the brakes or took evasive action prior to hitting Mr. Vertetis. He did state that just before impact, he saw Mr. Vertetis in the road directly in front of his car, and that he struck him "dead center on my patrol car."

The credible testimony of several witnesses, expert and lay, and documentary evidence, additionally established the following facts. In the seconds before the accident, and at the moment of impact, Trooper Farrell was driving a 2006 Ford Crown Victoria and utilizing his low [*4]beam headlights. At low beam, that car's headlight illumination is between 150 and 175 feet. The car is six feet wide and Trooper Farrell initially struck Mr. Vertetis directly in the middle of the front bumper area of the car, at the license plate. At impact, the speed of the vehicle was approximately 30 mph. Trooper Farrell did not brake, turn the vehicle's wheels or otherwise take any evasive action prior to striking Mr. Vertetis. At the moment of impact, Mr. Vertetis was within Trooper Farrell's SB lane of travel. Mr. Weaver, from a distance of about 150 feet, estimated Mr. Vertetis was approximately one foot in from the double-yellow line. Defendant's expert, Trooper Haydt, the State Police accident reconstructionist assigned to investigate and report on the accident, utilizing physical evidence observed at the accident scene, roadside field measurements and roadside field investigation, concluded the area of impact between vehicle and pedestrian placed Mr. Vertetis 2.1 feet in from the double-yellow line. This finding is set forth in several areas of Trooper Haydt's report, Exhibit 1, and is well supported by Exhibit 30, an accident scene photograph depicting the impact area, marked with an orange "T" in the road, determined by scuff marks originating the body's path of travel upon impact. By stipulation of the parties, the testimony of claimant's expert on this point was stricken. Trooper Farrell, declining counsel's efforts upon cross-examination to have him specifically locate Mr. Vertetis's position at impact relative to the double-yellow line, testified only that Mr. Vertetis was "very close" to the double-yellow line. On this point, the Court finds that the point of impact between pedestrian and vehicle to have been 2.1 feet in from the double-yellow line, within the SB lane of traffic. Continuing, at a point between 150 and 180 feet prior to impact (almost identically the illumination field of the car's headlights), Trooper Farrell began traversing a gradual left-hand curve (depicted from the driver's viewpoint in the lower right-hand photograph of Exhibit 36). At this point, some headlight illumination of Mr. Vertetis would have begun. Other than headlight illumination, the record does not support a factual finding that the point of impact was additionally illuminated by ambient light. It was neither foggy nor raining at the time of the accident. Finally, a car travels 1.466 feet per second for each mile per hour of speed employed. Accordingly, Trooper Farrell, traveling at 30 mph, was covering 43.98 feet of roadway per second immediately prior to the accident.

By these facts, on a perfect straightaway with direct, straight-line headlight illumination, not the case here but not too far removed from the road configuration involved, given the Troop car's headlight illumination capability (between 150 and 175 feet) and the car's speed, Mr. Vertetis would have begun to be illuminated by the car's headlights between 3.41 seconds (headlight range of 150 feet divided by 43.98 feet of roadway covered per second) and 3.98 seconds (headlight range of 175 feet) prior to the moment of impact. Direct headlight illumination of Mr. Vertetis would have been somewhat lessened, at least initially, due to the gradual curve of the road, although peripheral illumination would have begun, and he would have become directly illuminated as the Troop car completed the curve.

A motorist is under a duty "to keep a reasonably vigilant lookout for pedestrians, to sound his horn when a reasonably prudent person would do so to warn a pedestrian of danger, and to operate his vehicle with reasonable care to avoid colliding with a pedestrian on the roadway" (Merrill v State of New York, 110 Misc 2d 260, 267 [Ct Cl 1981], affd 89 AD2d 802 [4th Dept 1982]; Crandall v Lingener, 113 AD2d 529 [3d Dept 1986], lv denied 67 NY2d 607 [1986]; Spicola v Piracci, 2 AD3d 1368 [4th Dept 2003]; see Vehicle and Traffic Law § 1146). [*5]

Even in daylight and under perfect driving conditions, motorists are not obligated to, nor do they in practice, immediately see, perceive and react to driving conditions, events or circumstances. Perfect perception and reaction is, obviously, unobtainable. All that the law requires is reasonable vigilance. The vehicle-pedestrian collision took place at 11:40 p.m. on a dark, cloudy January evening, on a largely unlit stretch of roadway, and involved a pedestrian wearing dark clothing, walking down the middle of State Route 9W, a road with a posted speed limit of 40 mph.

This Court must decide in what amount, if any, the involved State Trooper fell short of exercising the required standard of care in operating his car the evening of January 6, 2008, under all of the described conditions. The Court concludes that the involved Trooper failed to maintain an obligatory vigilant outlook, which was a proximate cause of the collision. Accordingly, the defendant must bear some degree of culpability for the collision.

Under perfect circumstances, had Trooper Farrell immediately seen Mr. Vertetis at the first possible instant, at the far range of his headlights, and had he instantly perceived the situation and had he perfectly reacted, he still would have had only 3.98 seconds to avoid Mr. Vertetis. Motorists must first see, perceive and then react to a circumstance. Additionally, good driving practice, such as scanning the road and checking mirrors, obviously affects and lessens the time period within which to see a road condition, perceive it and react to it. As it is neither possible nor required that a motorist perform perfectly and instantly, Trooper Farrell's opportunity and obligation to see, perceive, react and avoid Mr. Vertetis therefore involved a further reduced time period (reduced from 3.98 seconds) within which to have acted. If for no other reason than this, defendant's culpability is lessened.

Still, a motorist is obligated to see what is plainly there to be seen. In reversing the trial court's finding completely absolving defendant driver, and remitting the matter to the Court of Claims for a new trial and to apportion liability between claimant and defendant, the Court in Domanova v State of New York (41 AD3d 633, 634 [2d Dept 2007]), explained that:

"Notwithstanding any alleged negligence on the part of the claimant, the driver had a common-law duty to see that which he should have seen through the proper use of his senses (see Larsen v Spano, 35 AD3d 820 [2006]; Botero v Erraez, 289 AD2d 274, 275 [2001]; Weiser v Dalbo, 184 AD2d 935 [1992]). Under the circumstances, the fact that the driver never saw the claimant does not excuse his conduct (see Larsen v Spano, supra; Pire v Otero, 123 AD2d 611, 612 [1986]). Thus, we reject the trial court's finding that the driver, and thus the defendant, were free from negligence (see Larsen v Spano, supra; Finkel v Benoit, 211 AD2d 749, 750 [1995]; Pire v Otero, supra)."

Of greatest persuasiveness to the Court that some defendant culpability pertains is that

Trooper Farrell never applied his brakes or took any evasive action prior to hitting Mr. Vertetis. He simply never observed the man until the instant before striking him. This, despite traversing an uncomplicated stretch of road, encountering a pedestrian well within his lane of travel, directly in front of his car, and striking him in a spot dead center on the car. Trooper Farrell's [*6]complete failure to see or perceive Mr. Vertetis until immediately before striking him leads the Court to conclude that he was less than acceptably vigilant in observing the road or maintaining a lookout and that that failure was a proximate cause of the collision.

Claimant seeks a finding of defendant negligence for Trooper Farrell having violated Vehicle and Traffic Law §§ 1120 and 1128, which mandate that motorists keep right and stay confined to a single lane of travel, in that his left set of wheels would have been on or over the double-yellow line at the moment of impact, reasoning that Mr. Vertetis was struck in the center of a six-foot-wide vehicle while, at most, being 2.1 feet within the SB lane of 9W. The argument fails.

Although the fact that some portion of the Troop car's left (driver's side) set of wheels were on or modestly over the double-yellow line at the moment of impact is further evidence of Trooper Farrell's shortfall of vigilance, the violation of the Vehicle and Traffic Law itself was not a proximate cause of the accident. Mr. Vertetis, walking well within Trooper Farrell's SB lane of travel, could have been struck by the Troop car even if that vehicle was fully, and lawfully, within its lane. Simply, Mr. Vertetis would have been struck by another area of the front of the Troop car had the car been traveling near the double-yellow line, although fully, and lawfully, within the SB lane of travel. As such, it cannot be said that the violation of Vehicle and Traffic Law was a proximate cause of the collision (see Rubino v Scherrer, 68 AD3d 1090 [2d Dept 2009]; Wallace v Terrell, 295 AD2d 840 [3d Dept 2002]; Finn v New York State Dept. of Mental Hygiene, 49 AD2d 995 [3d Dept 1975]).

Having concluded that defendant has some culpability for the events of January 6, 2008, the Court nevertheless finds that Mr. Vertetis was overwhelmingly responsible for the tragic events leading to his death. Vehicle and Traffic Law § 1156 (b) requires that:

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

Next, Trooper Farrell had, at most, something less than 3.98 seconds to see, perceive, react and attempt to avoid Mr. Vertetis. It was late in the evening on a dark, cloudy January night. Trooper Farrell encountered the unexpected, a pedestrian wearing dark clothes, walking down the middle of a not very well lit portion of State Route 9W, a roadway with a posted 40 mph speed limit. Trooper Farrell was traveling well below the posted speed limit, and the pedestrian was walking toward Trooper Farrell, not across his field of vision, making him even more difficult to see. Although claimant's expert opined that Trooper Farrell should have "expected" to encounter a pedestrian walking the double-yellow line in the middle of Route 9W at 11:40 p.m. on a dark January evening, the Court cannot agree. While opining that an event or circumstance is within the realm of the possible may be one thing, it is an entirely different characterization to say that the same is to be expected. Troopers are, according to claimant's expert, "supposed to expect everything." To expect everything allows for the differentiation of nothing, and to suggest that Mr. Vertetis's presence, given the location, date and time, was to be [*7]"expected" by a motorist, even a patrolling State Trooper, well overstates the case and contravenes common sense.

Finally, it was Mr. Vertetis who chose to become intoxicated, by which, as his subsequent actions demonstrated, his judgment became badly compromised. Moreover, it was Mr. Vertetis who chose to take a walk at 11:40 p.m. on a dark, cloudy January evening, choosing, for several minutes, to walk down the middle of a State Route with a 40 mph speed limit, while wearing dark clothing, which made him that much more difficult to see. It was Mr. Vertetis who chose to walk in the middle of the road, as opposed to walking near or on the road shoulder, which would have placed him farther out of harm's way. His choice to walk in the middle of the road exposed him to the dangers of traffic in both directions, as compared to one direction, a choice which dramatically increased the self-created danger. And, for example, had Mr. Vertetis been utilizing the double-yellow line as a guide or path on the dark evening, the same effect could have been achieved by using either of the two white fog lines found at the edge of each lane of travel. Finally, it was Mr. Vertetis who chose, for several minutes and over some distance, to continue to walk in the middle of the road, thereby, in addition to substantially increasing his risk, additionally lengthening the period of time during which he exposed himself to this heightened danger, never once choosing, during the period of time or distance involved, to step to the side of the road or to walk at the edge of the road (Watanabe v Sherpa, 44 AD3d 519 [1st Dept 2007]).

The Court finds that the conduct of Mr. Vertetis on the evening of January 6, 2008 demonstrates culpability of several magnitudes greater than that of defendant. Accordingly, the Court finds Mr. Vertetis 80% responsible for the events leading to his death, and the defendant 20% responsible.

A trial on damages will be scheduled.

All motions not previously decided are hereby denied.

Let interlocutory judgment be entered accordingly.

Albany, New York

April 14, 2010

FRANK P. MILANO

Judge of the Court of Claims

Trooper failed to maintain obligatory vigilant outlook, which was proximate cause of collision Footnotes

Footnote 1:The claim has, sua sponte, been amended to reflect the only proper defendant.