Hunt v State of New York

[*1] Hunt v State of New York 2021 NY Slip Op 51277(U) Decided on December 10, 2021 Court Of Claims 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 10, 2021
Court of Claims

Dale H. Hunt and Rhoda E. Hunt, Claimants,

against

The State of New York, Defendant.



Claim No. 131875



For Claimants:

MARTIN, HARDING & MAZZOTTI, LLP

By: Peter J. Hickey, Esq.

For Defendant:

HON. LETITIA JAMES

New York State Attorney General

By: Glenn King, Esq.

Assistant Attorney General
Frank P. Milano, J.

Dale H. Hunt and Rhoda E. Hunt (claimants) were badly injured on August 13, 2017 when the three-wheel motorcycle they were riding was struck by a Jeep Liberty operated by Lynn Ohlsten. The collision occurred within the intersection of State Route (SR) 374 and County Route (CR) 24, in the Town of Bellmont, County of Franklin, State of New York.

The claimants were traveling south on SR 374, facing an overhead flashing yellow signal [*2]at the intersection. Ms. Ohlsten was traveling east on CR 24, and as she approached the intersection, she was facing a STOP line on the pavement, a roadside STOP sign, an overhead STOP sign at the intersection and an overhead flashing red signal at the intersection. The two vehicles collided within the intersection.

Claimants allege that defendant was negligent in twenty-three respects, separately articulated in paragraphs 7(a) through 7(w) of the claim. The following allegations of negligence in the claim are an illustrative sample and distillation of the gravamen of the claim:

1. Paragraph 7(c) asserts: "In permitting such a dangerous and hazardous condition to exist for the use of the motorists who were lawfully driving on the public roadways at the intersection of County Route 24, also known as Brainardsville Road, and State Route 374 in the Town of Bellmont, County of Franklin and State of New York;"

2. Paragraph 7(e) asserts: "In failing to keep and maintain the public roadway in a reasonably safe and proper condition at the intersection of County Route 24, also known as Brainardsville Road, and State Route 374 in the Town of Bellmont, County of Franklin and State of New York;"

3. Paragraph 7(h) asserts: "In improperly constructing, designing, maintaining, repairing and/or inspecting the public roadway at the intersection of County Route 24, also known as Brainardsville Road, and State Route 374 in the Town of Bellmont, County of Franklin and State of New York;"

4. Paragraph 7(i) asserts: "In creating the above-described subject dangerous, defective and hazardous condition;"

5. Paragraph 7(l) asserts: "In allowing a dangerous, hazardous, defective and/or unsafe condition to exist at the intersection of County Route 24, also known as Brainardsville Road, and State Route 374 in the Town of Bellmont, County of Franklin and State of New York;"

6. Paragraph 7(m) asserts: "In causing, permitting and allowing the subject intersection to become and remain in a dangerous, hazardous, defective and/or unsafe condition;" and,

7. Paragraph 7(r) asserts: "Failing to alleviate and/or remedy the dangerous, hazardous, defective and/or unsafe condition of the intersection where this incident occurred despite constructive notice of same."

Defendant's posture is that claimant failed to prove at trial that the intersection constituted a dangerous condition by reason of its design and also failed to prove that any actions or inaction of defendant (e.g. failure to further control the intersection) were negligent. Additionally, defendant maintains that motorist Lynn Ohlsten is entirely responsible for the accident and for the injuries sustained by claimants.

The State of New York has a nondelegable duty to properly design, construct and maintain its roadways in a condition which is reasonably safe for those who use them (Friedman v State of New York, 67 NY2d 271, 283 [1986]). The State, however, is not an insurer of the safety of its roadways and the mere happening of an accident does not render the State liable (Tomassi v Town of Union, 46 NY2d 91, 97 [1978]). Claimant must prove negligence on the part of a defendant and that the negligence was a proximate cause in producing the accident (Bernstein v City of New York, 69 NY2d 1020, 1021-1022 [1987]). In general, liability will not attach unless the State had either actual or constructive notice of a dangerous condition and then failed to take reasonable measures to correct the condition (Rinaldi v State of New York, 49 [*3]AD2d 361, 363 [3d Dept 1975]; Brooks v New York State Thruway Auth., 73 AD2d 767 [3d Dept 1979], affd 51 NY2d 892 [1980]).

A recent Court of Appeals decision involving a right-angle motorcycle/pickup truck accident at a four-way intersection, Brown v State of New York (31 NY3d 514, 519-520 [2018]), is instructive:

"The State has a nondelegable duty to keep its roads reasonably safe (Friedman v State of New York, 67 NY2d 271, 283 [1986]), and the State breaches that duty "when [it] is made aware of a dangerous highway condition and does not take action to remedy it" (id. at 286). A breach proximately causes harm if it is a substantial factor in the plaintiff's injury (Turturro, 28 NY3d at 483).We first address whether the Appellate Division's standard for proximate cause was correct—i.e., what did Ms. Brown have to prove? The Appellate Division properly characterized the inquiry: "whether the dangerous condition of the intersection because of the vertical curve in the line of sight looking south from Paddy Lane, combined with the speed limit of 55 miles per hour and the absence of four-way stop signs at the intersection, may be deemed a proximate cause of the accident" (79 AD3d at 1584-1585 [internal quotation marks omitted]). The Court thus held that Ms. Brown was required to show "that the absence of safety measures contributed to the happening of the accident by materially increasing the risk, or by greatly increasing the probability of its occurrence" (id. at 1585 [internal quotation marks omitted]).We have never required accident victims to identify a specific remedy and prove it would have been timely implemented and preventedthe accident . . .Here, there is record support for the finding that the State's breach was a proximate cause of the accident. It is undisputed that there was a pattern of right-angle accidents at the intersection. It is also undisputed that the State did not complete the traffic study, reduce the speed limit on Route 350, change the design or signage, or take any steps whatsoever to attempt to improve safety at the intersection. The other affirmed findings of fact—that the vertical curve created visibility problems; that Mr. Friend stopped and looked both ways; that Mr. Friend was unable to see the motorcycle approaching; that no one was speeding—are beyond our review.Once on notice of the dangerous condition, it was the State's burden to take reasonable steps in a reasonable amount of time. Instead, it did nothing. That right-angle collisions would continue to occur absent the adoption of some safety measure is hardly surprising. "[T]he most significant inquiry in the proximate cause analysis is often that of foreseeability" (Hain v Jamison, 28 NY3d 524, 530[2016]). Where, as here, the risk of harm created by the defendant corresponds to the harm that actually resulted, we cannot say that proximate cause is lacking as a matter of law."

Trial of the claim was conducted virtually from May 3, 2021 to May 5, 2021. Claimants called themselves as witnesses, as well as Ms. Ohlsten, Town of Bellmont Supervisor H. Bruce Russell, New York State Department of Transportation employee Rob Haynes, their expert Ronald Bova, retired New York State Department of Transportation employee Robert Curtis and [*4]New York State Department of Transportation employee Kenneth Bibbins. Defendant called David Werner, then chairman of the Franklin County Traffic Safety Board, Sharon Raymond, who witnessed the accident, retired New York State Department of Transportation employee David Woodin as its expert and State Police Collision Reconstruction Unit member Anthony Bissonette, who field-examined the accident scene the afternoon of the accident, as its witnesses.

Each claimant's trial testimony was brief and limited. Rhoda Hunt was a passenger on the Hunt motorcycle. She testified that as the motorcycle entered the intersection, she observed a car coming at the motorcycle and that her husband Dale attempted to swerve the motorcycle to the left, but that the "front" of the car struck the right, back portion of the motorcycle. Motorcycle driver Dale Hunt had no recollection of the accident at all. Each claimant testified that the day of August 13, 2017 was sunny and that the roadways were dry, facts confirmed by other trial evidence.

Just prior to the accident, Lynn Ohlsten was driving a 2012 Jeep Liberty east on CR 24 approaching its intersection with SR 374. Her intention was to proceed through the intersection and to cross over SR 374. To her left was southbound traffic on SR 374, the road on which claimants were traveling. The day was dry and sunny. To Ms. Ohlsten's immediate left, the sight line by which to view SR 374 southbound traffic, a white building with an attached deck stood at the northwest corner of the intersection. To any motorist (including Ms. Ohlsten) traveling east on CR 24 approaching the intersection, the building with its attached deck and railings impeded an unobstructed view of southbound SR 374 traffic. Further impeding a motorist's unobstructed view was a telephone pole, also on the intersection's northwest corner. These circumstances are well shown in photographic Exhibits 17, 18, 19, 20, 21, 22, 23, 24 and 25.

At trial, Ms. Ohlsten testified she slowed her vehicle approaching the intersection, looked to her left and observed the white building. Facing an obstructed view of SR 374 southbound traffic, she moved her car forward from the pavement stop line on CR 24. Unsure if she ever came to a complete stop, she continued into the intersection and struck claimants' motorcycle. Ms. Ohlsten credibly testified that she never saw the claimants' vehicle before striking it, stating that she only saw a "flash" in the instant before impact.

Ms. Ohlsten acknowledged seeing the stop line and the stop sign at the intersection, but also stated at a pre-trial deposition her belief that the intersection required a four-way stop and that she was "surprised" to learn southbound SR 374 traffic faced a flashing yellow signal. She testified at trial that she needed to pull forward from the stop sign, as she had difficulty looking to her left, up SR 374, to observe oncoming traffic.

Post-accident data collected by Trooper Bissonette indicated that Ms. Ohlsten's speed at the moment of impact with claimants was 13 MPH and that the slowest recorded speed for Ms. Ohlsten was 3 MPH. The data recorder collected data for five seconds pre-impact. Ms. Ohlsten subsequently pled guilty to the traffic infraction of failure to yield the right of way.

Trooper Bissonette testified that a motorist in Ms. Ohlsten's position at the stop sign would face "a significant amount of visual clutter" and would have to move forward eleven feet from the stop sign to have a clearer view of SR 374 southbound traffic. He also testified "it was our - - my opinion that a vehicle stopped at the stop bar would have a diminished line of sight compared to the positioning for where you can see our vehicle here in the photograph [Exhibit 24]." Trooper Bissonette agreed that the telephone pole on the northwest corner could further [*5]obstruct a motorist's "clear sight line." Trooper Bissonette's field notes reported that a motorist at the stop sign "would not have a clear view of sight in order to ascertain if it was safe to cross the intersection." Photographic Exhibits 24 and 25 show Trooper Bissonette's State Police vehicle during his accident reconstruction. The photos show the Trooper's vehicle places the operating motorist eleven feet forward of the stop line on CR 24 and virtually places the front bumper of his vehicle into the southbound travel lane of SR 374. The Exhibits graphically demonstrate the challenges and dangerousness an eastbound motorist on CR 24 faced while at the intersection.

Interestingly, eyewitness Sharon Raymond, driving immediately behind Lynn Ohlsten as each approached the intersection, twice testified at trial that Ms. Ohlsten had come to a complete stop at the intersection before proceeding forward slowly (Trial Transcript of May 5, 2021, pp 56 and 66). Ms. Raymond's trial testimony was contradicted by her written statement of August 13, 2017 given to the State Police, in which she reported Ms. Ohlsten "pulled up to the red light and never came to a complete stop" (Exhibit V).

Ms. Raymond's trial testimony was also contradicted by Trooper Bissonette's testimony that Ms. Ohlsten's slowest speed was 3 MPH. However, these contradictions can be explained if Ms. Ohlsten had come to a complete stop more than five seconds before her collision with claimants, as the data collected by the Trooper only captured vehicle information for five seconds prior to the crash. Had Ms. Ohlsten completely stopped at the pavement stop line, between seventeen feet and nineteen feet short of the shoulder of SR 374 (as Trooper Bissonette both testified and as he had previously memorialized in his field notes), then proceeded slowly into the intersection, it's more likely than not that Ms. Ohlsten came to a complete stop at the stop line at a point in time more than five seconds prior to colliding with claimants. That also explains Ms. Raymond's trial testimony that Ms. Ohlsten had completely stopped, as compared to her written statement about Ms. Ohlsten's failure to completely stop at the red light.

Long-time (14 years) Town of Bellmont Town Supervisor, H. Bruce Russell, testified to being aware, prior to August 13, 2017, of several collisions at the involved intersection. Indeed, Mr. Russell personally experienced near collisions at the intersection "a few times," and observed, "[y]ou need to pull pretty well into the intersection to get a good look at that road" and "I believe about a third of the vehicle has to be into the - - pretty well on to 374."

Asked about making his concerns known to New York State Department of Transportation prior to August 13, 2017, Mr. Russell credibly testified, "[w]hen I would have occasion by phone conversation with Rob Haynes on several occasions, the opening for the conversation was not necessarily the intersection. But any time I was on the phone with someone from State, I would make them aware that they've got to fix that intersection."

Although uncertain if a Bellmont Town Board Resolution dated July 17, 2017 (Exhibit 73) expressing the Town Board's concern about the "very poor visibility" at the subject intersection was ever provided to the New York State Department of Transportation, Mr. Russell testified that the Resolution's expressed concerns accurately reflected the very same concerns that he had previously made known to Rob Haynes, the New York State Department of Transportation Resident Engineer of Franklin County, prior to August 13, 2017.

When asked if the Town Board's Resolution was necessary, "because you heard nothing from D.O.T. to your in - - informal complaints," Town Supervisor Russell answered, "Yes."

Claimants called four current or former New York State Department of Transportation [*6]employees as trial witnesses, one of whom, Ronald Bova, served as an expert witness for claimants. Mr. Bova has also been employed as a consultant to the Department of Transportation on a number of projects.

Rob Haynes served as the Franklin County Department of Transportation Resident Engineer at the time of claimants' accident, and had served in that capacity beginning in 1995. Mr. Haynes' testimony, and related documentary evidence, was notable in the following respects:

1. Mr. Haynes, prior to claimants' accident, was aware that other accidents had occurred at the intersection of CR 24 and SR 374;

2. Exhibit 55 includes a series of emails on July 8, 2016, approximately 13 months prior to claimants' accident, by and between New York State Department of Transportation employees. Among others, included in the email distribution were trial witness Haynes, trial witness Robert Curtis (Department of Transportation Regional Design Engineer), trial witness Ken Bibbins (Department of Transportation Regional Traffic Engineer) and Steve Kokkoris (Department of Transportation Regional Director).

Mr. Curtis, referencing the intersection, writes to the group, "Tom King and I drove through there yesterday and agree that the sight distance is a problem. I thought at the time that a four way stop would be appropriate here with a four way flashing red light. I think it would be quicker and more suitable than the ROW acquisition."

Also in the email exchange, trial witness Haynes wrote to the group, "I received a call this morning from retired ARE Gerry Ryan [retired Department of Transportation Assistant Resident Engineer] who said he witnessed a near miss at the 374/CR24 intersection and was asking if we could obtain a temp easement from the property owner whose deck obstructs a portion of the view as you look north on Route 374. Not sure if such a thing is possible but it would increase the line of sight to the north;"

3. Coincidentally, although not involving the same travel paths involved in claimants' accident, there was a two-vehicle accident at the intersection on July 9, 2016 (see Exhibit 41), the day following the July 8, 2016 email exchange between Department of Transportation employees;

4. Shortly after that exchange of emails, the property owner of the white building on the northwest corner of the intersection, after being contacted by New York State Department of Transportation, removed (on July 12, 2016) the attached deck's vertical spindles, but the deck itself and its railings remained; and,

5. Even after the deck's spindles had been removed, four additional accidents occurred at the intersection of CR 24 and SR 374 prior to the date of claimants' accident of August 13, 2017 (see Exhibits 42, 43, 44, and 69).

Three of those accidents (Exhibits 42, 44 and 69) identically mimicked the travel paths of claimants and Ms. Ohlsten, and each accident resulted in like collisions.

New York State Department of Transportation employees Robert Curtis and Kenneth Bibbins, both of whom were part of the email exchanges of July 8, 2016 (Exhibit 55), testified at trial. Mr. Curtis had been made aware of the sight line problems at the intersection and had visited the location in Summer 2016. Within Exhibit 55, Mr. Curtis indicated to his New York State Department of Transportation colleagues that at the intersection "a four way stop would be appropriate here with a four way flashing red light," further indicating the attached deck [*7]presented a sight distance problem from CR 24 looking north to SR 374.

After the sight line issue was raised in 2016, Mr. Curtis testified that he was unaware of whether defendant conducted a sight line study or an accident history study or any type of engineering study, and further, that as the Regional Design Engineer beginning in Spring 2017, he personally did not conduct any such studies.

Mr. Curtis explained that the reason he recommended a four-way stop instead of obtaining a right of way acquisition from the building/deck owner was that he considered his recommendation to be quicker and "more suitable" and that the sight line "problem was more immediate." Mr. Curtis conceded that at his pre-trial deposition he testified that the defendant's approach to persuade the property owner to remove the deck's spindles was a "compromise."

Kenneth Bibbins, New York State Department of Transportation Regional Traffic Engineer during the relevant time involved, also testified. On June 14, 2016, Dean DeWitt (an engineer employed by defendant) communicated electronically with Mr. Bibbins (Exhibit 53), and in the exchange Mr. Bibbins specifically refers to "drivers failing to yield the ROW to the EB [sic] travelers on 374." Mr. DeWitt then refers explicitly to a complaint made by an Agri-Mark representative about trucks traveling on CR 24 being unable to safely clear the intersection ahead of SR 374 traffic. Although both Mr. DeWitt and Mr. Bibbins mistakenly refer to eastbound SR 374 (which doesn't exist) traffic, it is clear they are speaking of southbound SR 374 traffic being imperiled by eastbound motorists on CR 24 entering the intersection, precisely as Ms. Ohlsten did 14 months later.

On July 8, 2016, Mr. Bibbins was made aware of the sight line problem at the intersection by Mr. Curtis who, in the electronic mail (Exhibit 55), recommended a four-way stop. Three days later, on July 11, 2016, Mr. Bibbins was electronically notified by Dean DeWitt (Exhibit 52) that State Police Sergeant Jay Cook asked about the possibility of placing traffic signals at the intersection, and also reported an accident at the intersection days earlier.

Mr. Bibbins also confirmed defendant did no studies to evaluate the placement of traffic signals at the intersection. Mr. Bibbins further conceded that the removal of the deck's spindles (which occurred the following day) did not eliminate the sight line obstruction presented by the deck's railings, and that subsequent to the removal of the spindles, additional accidents occurred at the intersection.

Mr. Bibbins testified that subsequent to Mr. Curtis's email of July 8, 2016 (Exhibit 55) in which Mr. Curtis recommended a four-way stop at the intersection, he neither spoke to Mr. Curtis nor did the defendant conduct a four-way stop evaluation, an engineering study, a sight distance study, a traffic study or an accident history study at the intersection.

Claimants' expert, Mr. Bova, visited the accident site in August 2018. He noted eastbound motorists on CR 24, looking north to SR 374 while at the pavement stop line, were presented with building, railing, deck and power pole obstructions, and characterized the sight distance as "clearly substandard." According to Mr. Bova, the "tight curve" on SR 374 north of the intersection "compound[ed] the problem of the substandard intersection sight distance." Accordingly, he concluded and opined that the "inadequate sight distance" was a contributing factor that caused the crash.

Further commenting on the "tight curve," Mr. Bova opined that the curve's radius failed to meet minimum required standards to provide appropriate sight distance for CR 24 eastbound [*8]motorists at the intersection, and included that failure as a contributing factor in the crash.

Next, Mr. Bova opined that the intersection was improperly controlled, and that the intersection required a four-way stop, based upon guidance ("warrants") contained in the Manual on Uniform Traffic Control Devices (MUTCD). One of the warrants suggestive of a four-way stop at the intersection is the occurrence of five (5) or more crashes in a 12 month period.

Mr. Bova then discussed multiple overlapping periods of time in the three years prior to claimants' collision during which the intersection of CR 24 and SR 374 experienced five or more crashes within a 12 month period, crashes he characterized as "subject to correction."

These periods of time, all taking place prior to the date of claimants' crash on August 13, 2017, were:

1. Five crashes within 10 months (Exhibits 35, 36, 70, 37 and 38);

2. Five crashes within 11 months (Exhibits 70, 37, 38, 39 and 40);

3. Five crashes within 9 months (Exhibits 39, 40, 41, 42, and B);

4. Six crashes within 12 months (Exhibits 41, 42, B, 69, 43 and 44); and,

5. Five crashes within 10 months (Exhibits 42, B, 69, 43 and 44).

In observing that these several overlapping periods of time met the MUTCD warrant suggestive of a four-way stop at the intersection, Mr. Bova opined that the discussed accidents "were susceptible to correction if the intersection had been a four-way stop intersection." It was on this point that Mr. Bova and Mr. Woodin materially disagreed.

The primary area of analytical disagreement between the two experts, beyond their respective ultimate expressions of expert opinion, was whether the several collisions at the intersection were "subject to correction" per MUTCD guidance in assessing if the intersection merited employing four-way traffic control.

On this point, the Court found claimants' expert, Mr. Bova, more persuasive than defendant's expert and credits Mr. Bova's opinions that the myriad number of intersection collisions were subject to correction. The Court notes that the MUTCD guidance on this point does not require, or even suggest, that an intersection's collisions occur in an identical fashion in order for them to be adjudged subject to correction.

Ultimately, Mr. Bova persuasively opined that the traffic control employed at the intersection on August 13, 2017 was "inadequate and substandard" and that the inadequate and substandard traffic control contributed to claimants' accident. Had the intersection been a four-way stop on August 13, 2017, Mr. Bova credibly opined that claimants' accident would have been prevented as "both vehicles would have stopped and one vehicle would have expected and proceeded through the intersection safely."

Defendant's expert, Mr. Woodin, never visited the intersection. He never did a sight distance evaluation from CR 24 looking north to SR 374. He never evaluated whether the building, deck and the power pole on the northwest corner of the intersection posed visual obstruction(s) to motorists. Although earnest in his testimony, the Court found his testimony justifying the defendant's actions and inaction, and particularly his justifications for defendant's inaction in response to DOT employee Curtis's suggestion for a four-way stop at the intersection and Sgt. Cook's suggestion about placement of traffic signals at the intersection, to be unpersuasive. The Court was particularly unimpressed when Mr. Woodin went so far as to justify DOT's failure to even undertake a study to determine whether it was appropriate for a multi-way [*9]stop application be applied to the intersection of 374 and 24. The Court found Mr. Bova to be substantially more persuasive than Mr. Woodin.

The intersection of SR 374 and CR 24 was a patently dangerous highway condition, of which defendant had years of notice and years of knowledge of complaints, near accidents and of 13 State Police-reported accidents (Exhibits 35 to 44, 69, 70 and B) at the intersection in the three years prior to August 13, 2017.

The defendant's explanations for its inaction to address the obvious dangerousness of the intersection in any meaningful way, particularly to motorists such as Lynn Ohlsten traveling east on CR 24 and crossing SR 374, motorists unable to see southbound traffic on SR 374 without virtually placing their vehicles into the southbound lane of travel, were self-serving, insufficient and unpersuasive.

In response to concerns expressed about the intersection and suggestions to install a four- way stop or a three-color light there, some of which defendant internally discussed, the defendant took exactly two grossly inadequate ameliorative steps:

A. On a temporary basis, it arranged to have a "YOUR SPEED IS" machine placed north of the intersection in an attempt to persuade southbound traffic on SR 374 to slow - - the device was utilized for all of a few weeks (see Exhibit H) before it was removed; and,

B. Defendant persuaded the property owner of the building/deck positioned on the northwest corner of the intersection, which contributed to severely diminishing the sight line of CR 24 eastbound traffic to view southbound SR 374 traffic, to remove the deck's spindles, leaving the building, the deck itself and the deck's railing as remaining and substantial impediments to a proper sight line of southbound SR 374 traffic.

Other than these two steps, the defendant took no further corrective action prior to August 13, 2017, in the face of numerous red flags raised about the intersection, including:

1. 13 State Police-reported accidents at the intersection in the preceding three years;

2. State Police Sgt. Cook suggesting placement of a light at the intersection;

3. DOT's Franklin County Resident Engineer Haynes's choice to reject DOT's Regional Design Engineer Curtis's suggestion that a four-way stop be implemented at the intersection;

4. Various and several complaints/concerns about the dangerousness of the intersection made to DOT over the years, several of which expressly referenced the limited and inadequate sight distance created by the obstacles of the building, deck, railing and power pole located on the intersection's northwest corner. Complaints/concerns were made to DOT by, among others, private citizens, a local business concern (see Agri-Mark complaint, memorialized in an email dated June 14, 2016 at 12:53 p.m. from Dean DeWitt of DOT to other DOT employees which is contained within Exhibit 53) and the Town of Bellmont Town Supervisor Russell; and,

5. Internal defendant communications discussing the issues and/or problems posed by the intersection and, within those communications, expressions of concern about those issues and/or problems.

Defendant's assertions concerning the method(s) of reporting accidents that occurred at the intersection, the retrieval methods available by which accident information could be obtained and potential time delays between when accidents occurred and when information about a particular accident could be accessed from a database by defendant, in an effort to suggest that defendant had limited, if any, notice of the dangerousness of the intersection are underwhelming.

The defendant, by reason of the various and plentiful circumstances noted had, well before August 13, 2017, ample and repeated notice, and in fact actual knowledge, of the dangers posed by the SR 374 and CR 24 intersection.

The Court finds defendant culpable for claimants' injuries due to its failure to act or react, in any meaningful way, to the obvious dangerousness of the intersection.

The defendant also seeks to avoid culpability by asserting that the entire responsibility for the accident lies with Ms. Ohlsten. The Court disagrees.

Ms. Ohlsten, if not coming to a full stop at a point well in front of the intersection, a point with obstructed sight lines to SR 374 southbound traffic, slowed to 3 MPH as she approached the intersection. At that rate, Ms. Ohlsten, it can be fairly characterized, had slowed to a virtual stop.

Ms. Ohlsten neither 'breezed' through the intersection (the Court's language), nor did she exhibit irresponsible driving behavior, given the challenges facing CR 24 eastbound motorists seeking to cross over SR 374.

The conduct of Ms. Ohlsten was far from the predominant cause of the accident on August 13, 2017. The claimants have proven by a preponderance of the credible evidence that predominant culpability for and proximate cause of the accident, through its actions and inaction, rests with the defendant. Accordingly, the defendant's Sixth Defense in its Verified Answer is without merit and without effect.

No proof was presented at trial implicating claimant liability. The Court assigns no culpability to claimants.

The decision of the Court of Appeals in Brown (31 NY3d at 520) is, again, instructive:

"Here, there is record support for the finding that the State's breach was a proximate cause of the accident. It is undisputed that there was a pattern of right-angle accidents at the intersection. It is also undisputed that the State did not complete the traffic study, reduce the speed limit on Route 350, change the design or signage, or take any steps whatsoever to attempt to improve safety at the intersection. The other affirmed findings of fact—that the vertical curve created visibility problems; that Mr. Friend stopped and looked both ways; that Mr. Friend was unable to see the motorcycle approaching; that no one was speeding—are beyond our review.Once on notice of the dangerous condition, it was the State's burden to take reasonable steps in a reasonable amount of time. Instead, it did nothing. That right-angle collisions would continue to occur absent the adoption of some safety measure is hardly surprising. "[T]he most significant inquiry in the proximate cause analysis is often that of foreseeability" (Hain v Jamison, 28 NY3d 524, 530[2016]). Where, as here, the risk of harm created by the defendant corresponds to the harm that actually resulted, we cannot say that proximate cause is lacking as a matter of law."

All motions not previously decided are hereby denied.

Let interlocutory judgment be entered.

A trial on damages will be scheduled upon consultation with the parties.

Albany, New York

December 10, 2021

FRANK P. MILANO

Judge of the Court of Claims