Mohan v State of New York

[*1] Mohan v State of New York 2012 NY Slip Op 50368(U) Decided on January 4, 2012 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 4, 2012
Ct Cl

Paul Mohan, Claimant,

against

The State of New York

[FN1], Defendant.

Shirley Mohan, Claimant,

against

The State of New York, Defendant.



115997



For Claimant:

Friedman & Moses, LLP

By: Steven B. Dorfman, Esq. (Claim No. 115997)

Alpert, Slobin & Rubenstein

By: Gary Slobin, Esq. (Claim No. 116254)

For Defendant:

Eric T. Schneiderman, Attorney General

By: Cheryl Rameau, AAG

Alan C. Marin, J.

This is the decision following the trial of the claims of Paul Mohan and Shirley Mohan, who on the evening of September 28, 2007, were driving back to their home in Suffolk County from Yonkers after visiting relatives. Mr. Mohan was at the wheel driving south in the left lane of the Hutchinson River Parkway with his wife Shirley in the passenger seat next to him. It was [*2]about 11 p.m. when claimants' car was cut off and sideswiped by a speeding vehicle,[FN2] with the result that both vehicles careened toward the median, passed through an opening in the barrier there and into northbound traffic where the Mohans' car was struck by two vehicles. (Cl exh 5).

Claimants contend that the median barrier did not comply with design standards, that the opening or break therein was a dangerous condition and that the State of New York is liable in negligence for the accident - - with defendant not being entitled to qualified immunity per Weiss v Fote, 7 NY2d 579 (1960), inasmuch as it had not undertaken an adequate study of the opening in the median barrier.

* * *

The Hutchinson River Parkway traverses Bronx and Westchester counties to the Connecticut state line (cl exh 6A). In 1982, a contract was let out to reconstruct 1.1 miles of the Hutchinson in southern Westchester; the work was completed in 1984. The southern-most segment of the project, Section A-1, which includes the accident area, had been built in the 1920's and reconstructed in 1936. The Hutchinson, with two lanes in each direction, runs north-south in the vicinity of claimants' accident, which was near the Parkway's intersection with Boston Post Road, just north of the Bronx county line. (Cl exh 6A).

Bruce Savik, defendant's expert engineer, gave this general description of the 1982 project in his testimony: "The major portion of the work was intersection improvements. There were some slight alignment changes. The vertical geometry was changed to improve sight distance. The ramps at the intersections were reconstructed." Also taking the stand was Michael Schaefer, a State Department of Transportation (DOT) engineer, who explained that a new ramp was constructed so that vehicles traveling on Boston Post Road would have access to the southbound Parkway.

Prior to 1982, the median barrier at this location was corrugated metal and had a similar break or opening therein. According to Mr. Schaefer, under the1982 project, the barrier north of the opening was converted from corrugated metal to a concrete Jersey barrier, the opening was positioned 75 to 100 feet farther south and its length became "slightly larger" at 42 feet. The ends of the barrier on either side of the opening, concrete to the north and metal to the south, taper down to the ground, where they are anchored (cl exh 10M).

The opening in the median barrier is still entirely in Westchester County, but so close to the Bronx County or New York City line that one of the police officers on the accident scene, Jason Edwards, who filled out the Police Accident Report and testified at trial, had responded from the Bronx highway patrol unit of the New York City Police Department (cl exh 5).

Claimants called to the stand as an expert witness, civil engineer Joseph Filippino. Mr. Filippino stated that in his experience, an opening in a median separating traffic in opposite directions can serve as a crossover or turnaround for emergency vehicles such as police, fire and ambulance or for maintenance vehicles. However, his opinion was that this particular barrier opening was not an adequate turnaround for any of these purposes; and, in fact, "This is a dangerous condition . . . It presents an opening for traffic to cross over . . . whether by accident, by losing control, someone falling asleep, what have you." [*3]

Claimants assailed the legitimacy of the barrier opening as not constituting a turnaround for any official purpose, on a number of grounds, including that: i) the 1982 contract plans (def exh A) contain no description accompanying the opening to the effect that such is for emergency or maintenance purposes, significant given that in the 1936 plans, the barrier opening is labeled a "Police Opening" (cl exhs 7A & 7B); ii) at the site itself, the opening is not identified as for emergency, maintenance or official use; iii) Officer Edwards testified that he did not use the opening as a turnaround because, "There's an exit right there"; and iv) the putative turnaround is too small: Edwards explained that, "There's no shoulder for me to turn around on"; the lack of a deceleration lane was questioned; Filippino doubted that there was enough room for the "safe movement" of these kinds of vehicles, and claimants, citing a provision of the New York State Design Manual, asserted that the median was narrower than the required 36 feet.

With that said, Schaefer, of the Department of Transportation, testified that based on his experience, the opening was an emergency turnaround, irrespective of any formal signage to that effect, and that no shoulder was required for such a turnaround. Mr. Savik stated that he knew of no requirement in 1982 that any signs be posted to indicate a maintenance or police crossover. There was, in any event, a sign with a No U-turn symbol facing the motorist traveling in either direction. (See the photos that are cl exhs 10E & 10M).

As for the deceleration lane, Savik was cross-examined as follows: Q. So isn't it also fair to say then that if it doesn't include a deceleration lane as required by this section [FN3] that this median barrier opening . . . may not be a maintenance crossover? A. . . . that's why the openings are left on the roadway. They're for maintenance or emergency vehicles . . .

However, the width of the median area and the lack of a shoulder or deceleration lane has not been shown to relate to the occurrence of the Mohans' accident, and the Court credits the testimony of Schaefer and Savik that the median opening as reconstructed by the 1982 project was compliant with the then existing standards of the State Design Manual as well as the American Association of State Highway and Transportation Officials (AASHTO). Section 5.06.06 of the Design Manual provides that, "On narrow medians, a greater width of pavement may be needed to accommodate turning maintenance vehicles," implying that a narrow median is acceptable depending upon the circumstances and evoking the larger issue that the Design Manual, as Savik explained, is to be used together with sound engineering judgment (def exh B).

Officer Edwards only briefly touched on not using the median opening and did not distinguish between routinely returning to his Bronx post or a situation that would be more emergent. For that matter, the officer testified that, "There's a guardrail. As far as I know, that is in the city. I don't really travel into the Westchester area." Moreover, the credible testimony comprehended maintenance functions along with police, fire and ambulance services - - and as set out below, §5.06.06 additionally listed the use of crossovers for "repair service of stalled vehicles."

Edwards' testimony highlighted the fact that the area in question is essentially the [*4]Westchester/New York City line, a logical place for a turnaround as this exchange with DOT's Schaefer elicited: Q. - - when the plans were developed in 1982, was the median opening designed to be there at the border of New York City and Westchester?A. Yes.[FN4]

The Design Manual of the State of New York had two provisions in effect as of the 1982 reconstruction that relate to our inquiry: §5.06.06, Maintenance Crossovers on Divided Highways and §10.02, Median Barriers (def exh B and cl exh 9). Savik explained that the Design Manual had been developed over the years, beginning as a compendium of memos, growing to hundreds of pages with the purpose of promoting consistency of design. Significantly, he added: These are guidelines - -. It allows for flexibility of design, it allows the designer to use his own professional engineering judgment, it allows also for you to look to AASHTO or other publications for information - - helpful during design.

He noted that the engineer starts with the Design Manual and works from there, with it generally taking precedence over AASHTO standards, but that there was nothing in the latter that gave more guidance than §5.06.06 of the Design Manual.

Section 5.06.06 contains the following guidelines: Regularly spaced openings or crossovers on controlled access divided highways are needed to facilitate maintenance operations, policing, and repair service of stalled vehicles . . .Median openings should be spaced so that the distance between such openings is not greater than about 3 miles. Also, to facilitate snow removal, crossovers should generally be located at each end of an interchange . . .

Section 10.02 of the Design Manual covers Median Barriers; §10.02.02 is entitled Warrants, which provides that a median barrier will be required at or for: A. Medians less than 36 feet in width.B. Interchange locations where:

1. Adjacent opposite direction ramps exist.

2. Exit and entrance ramp terminals at crossroads will permit wrong-way movements.

[Cl exh 9]. Savik acknowledged that the median here was less than 36 feet; but §10.02.02 must [*5]be read together with §5.06.06 on crossovers: §10.02.02 does not mean that a crossover is unwarranted where otherwise permissible under §5.06.06.

In Savik's credible testimony, neither item 1 nor 2 under paragraph B on interchange locations bars the subject opening, given: the §5.06.06 provision that to facilitate snow removal, crossovers should be positioned "at each end of an interchange,"[FN5] and that the location of the crossover vis-à-vis the interchange or any ramp complies with the then existing regulations and good engineering practices.

Savik was asked about portions of §5.06.06 as follows: Q. . . . Does this particular provision state that maintenance crossovers are allowed or permitted on divided highways?A. Yes.

. . . Q. [Directing the witness to the second paragraph] Okay, and that states that median openings should be spaced so that the distance between such openings is not greater than about three miles?A. That's what it says.Q. Okay, and it says that these are needed to facilitate snow removal, correct?A. That's what it says, yes.Q. Okay, and then it says crossovers should generally be located at each end of an interchange?A. That's correct.Q. Okay. This particular median opening on the Hutchinson River Parkway, is it located at the end of an interchange?A. Yes it is.

As to this issue of the positioning of crossovers and the interchange, Filippino, claimants' expert, seemed somewhat uncertain: Q. Now, this particular median opening is located at the end of an interchange, correct?A. It's at - - it's near the interchange . . . I don't know if I'm going to agree that it's right at the end of it. But it's right at the interchange.

The Court finds Mr. Savik's opinion that the existence, location and dimensions of the median opening were compliant with applicable standards more credible than that of Mr. Filippino. Savik's credibility was enhanced by his extensive consulting experience, including [*6]work on other metropolitan parkways, and his blunt demeanor, which while not always patently favorable to the defendant, added to the credibility of his ultimate conclusions.[FN6]

Filippino did not convey the same level of familiarity with these kinds of issues. For example, he had not looked at the then applicable AASHTO guidelines (whereas Savik quickly offered that the 1973 guidelines were the ones that governed the 1982-1984 reconstruction) and was vague about distances: " . . . the opening is approximately 36 feet in length. It might be a little longer than that," and he was unaware of the sight distances.

The median opening was positioned on a stretch of the Parkway that was flat and straight; this was not a location, for example, where vehicles could leave a curved, poorly banked road and head for the opening. While more of a stopping distance and thus rear-end collision issue, it might be noted that Savik testified, without contradiction, that the sight-distance requirement on a road with the Hutchinson Parkway's speed limit was 350 feet and the sight distance at this accident location was 1,000 feet.

The defendant has a nondelegable duty to the motorist to keep its roadways in a "reasonably safe condition." Friedman v State of New York, 67 NY2d 271, 283 (1986). That this nightmarish accident occurred does not necessarily implicate liability; "Negligence requires both a reasonably foreseeable danger of injury to another and conduct that is unreasonable in proportion to that danger" (PJI 2:12).

This Court has concluded that the existence, location and dimensions of the median opening complied with applicable standards and engineering practices. Secondly, a look at the accident data confirms that this was not a dangerous condition.

Part of a Draft Design Report for Section A-1, dated May 14, 1981 and prepared by a firm of consulting engineers, contained an analysis of accidents for the most recent three-year period for which the statistics were then available, namely, calendar years 1977 through 1979 (cl exh 8). Claimants maintain that 59% of the accidents (27 of 46) in that three-year period for Section A-1 of the Parkway involved the median barrier.

Filippino directed the Court to page 30 of the Draft Report which stated, "During the three years, 1977-1979, 6 PDO [property damage only] and 21 injury accidents occurred at the median barrier in Section A-1." Nonetheless, more persuasive are the three earlier places in the Report describing barrier accidents page 16: "8 involved collisions with the median barrier"; Table 3 on page 15, which breaks the median barrier collisions into six with property damage only and two injury; and page 13, which is a foldout map with each accident plotted. Savik went [*7]through the map and testified that he counted 8 accidents involving the median barrier.

Thus, pursuant to the Draft Report's analysis, for a three-year period, there were eight accidents that would presumably, without a median barrier, have resulted in vehicles crossing to the opposite lanes of traffic as the Mohans' car did. But the analysis covered the entire A-1 section, which is 3,200 feet long, or more than 75 times the length of the 42-foot median opening (the slightly longer reconstructed length). A search of DOT's records yielded no crossover accidents at the median opening in the five years prior to September 28, 2007.[FN7]

Furthermore, consider that these accident numbers were on a road that according to Filippino, without utilizing figures from an actual count, but inferring them from its classification as a Class 12 urban arterial expressway, carries "anywhere from 50,000 vehicles a day to maybe approaching 100,000 vehicles a day." The Draft Report had the traffic volume in 1980, before this project that has indisputably increased the amount of vehicular traffic, as 36,000 vehicles a day north of Boston Post Road at the then existing toll station (cl exh 8, page 4).

***

In view of the foregoing, this Court concludes that the barrier opening complied with appropriate standards and was not a dangerous condition which would implicate negligence on the part of the defendant State of New York. Thus, it is unnecessary to reach claimants' contention that defendant is not entitled to qualified immunity. Therefore, the claims of Paul Mohan (claim no. 115997) and Shirley Mohan (claim no. 116254) are dismissed.

The Chief Clerk of the Court is directed to enter judgments accordingly.

New York, New York

January 4, 2012

ALAN C. MARIN

Judge of the Court of Claims Footnotes

Footnote 1:Both captions have been amended to reflect that the sole properly named defendant is the State of New York

Footnote 2: The police determined that the other vehicle was driven at about 70 to 71 miles per hour (cl exh 5); the speed limit was 50 miles per hour.

Footnote 3: New York State Design Manual §5.06.06 (def exh B).

Footnote 4: As we shall see, §5.06.06 of the Design Manual provided that the distance between median openings should be no greater than three miles - - no testimony was offered of any other openings within three miles.

Footnote 5: Michael Schaefer testified that, "Typically on, on new construction of an interchange there is emergency turnarounds or maintenance turnarounds provided for on either end of the interchange."

Footnote 6: In their post-trial memorandum, claimants contend that by not calling an expert to the stand for which it gave a §3101(d) notice, defendant should be subject to an adverse inference. (Pages 63 and 64 of the Joint Trial Memorandum on Behalf of Claimants Paul Mohan and Shirley Mohan, dated November 4, 2011). Defendant's §3101(d) notice for Stephen Coulon, dated July 5, 2011, and which claimants attach as exhibit A to the November 4, 2011 Affidavit submitted with their Memorandum, states that "Mr. Coulon will be called as an Accident Reconstruction and Safety Expert." The issue was apparently not raised before the Memorandum was submitted and the §3101(d) notice was not offered into evidence. With that said, having read exhibit A, and assuming the request for the missing witness inference was properly and timely made, such would not affect the Court's Decision.

Footnote 7: This was the testimony of Richard Dillmann, a civil engineer with the State Department of Transportation (Region 8), who undertook a search of the records for that period.