JEREMIAH J. MORIARTY III

Synopsis

Case information

+-----------------------------------------------------------------------------+ ¦UID: ¦2011-037-505 ¦ +---------------------+-------------------------------------------------------¦ ¦Claimant(s): ¦DEBORAH E. MARROW, Individually and as Administratrix ¦ ¦ ¦of the ESTATE OF ANTHONY L. MARROW ¦ +---------------------+-------------------------------------------------------¦ ¦Claimant short name: ¦MARROW ¦ +---------------------+-------------------------------------------------------¦ ¦Footnote (claimant ¦ ¦ ¦name) : ¦ ¦ +---------------------+-------------------------------------------------------¦ ¦Defendant(s): ¦STATE OF NEW YORK ¦ +---------------------+-------------------------------------------------------¦ ¦Footnote (defendant ¦ ¦ ¦name) : ¦ ¦ +---------------------+-------------------------------------------------------¦ ¦Third-party claimant ¦ ¦ ¦(s): ¦ ¦ +---------------------+-------------------------------------------------------¦ ¦Third-party defendant¦ ¦ ¦(s): ¦ ¦ +---------------------+-------------------------------------------------------¦ ¦Claim number(s): ¦111701 ¦ +---------------------+-------------------------------------------------------¦ ¦Motion number(s): ¦ ¦ +---------------------+-------------------------------------------------------¦ ¦Cross-motion number ¦ ¦ ¦(s): ¦ ¦ +---------------------+-------------------------------------------------------¦ ¦Judge: ¦JEREMIAH J. MORIARTY III ¦ +---------------------+-------------------------------------------------------¦ ¦ ¦Hogan & Willig, PLLC ¦ ¦ ¦ ¦ ¦Claimant's attorney: ¦By: John B. Licata, Esq. and ¦ ¦ ¦ ¦ ¦ ¦Jaclyn S. Wanemaker, Esq. ¦ +---------------------+-------------------------------------------------------¦ ¦ ¦Hon. Eric T. Schneiderman ¦ ¦ ¦ ¦ ¦ ¦New York State Attorney General ¦ ¦Defendant's attorney:¦ ¦ ¦ ¦By: William D. Lonergan ¦ ¦ ¦ ¦ ¦ ¦Assistant Attorney General ¦ +---------------------+-------------------------------------------------------¦ ¦Third-party ¦ ¦ ¦defendant's attorney:¦ ¦ +---------------------+-------------------------------------------------------¦ ¦Signature date: ¦August 15, 2011 ¦ +---------------------+-------------------------------------------------------¦ ¦City: ¦Buffalo ¦ +---------------------+-------------------------------------------------------¦ ¦Comments: ¦ ¦ +---------------------+-------------------------------------------------------¦ ¦Official citation: ¦ ¦ +---------------------+-------------------------------------------------------¦ ¦Appellate results: ¦ ¦ +---------------------+-------------------------------------------------------¦ ¦See also ¦ ¦ ¦(multicaptioned case)¦ ¦ +-----------------------------------------------------------------------------+ Decision

This Claim involves the tragic death of Anthony L. Marrow (Decedent) in a motorcycle accident. Deborah E. Marrow (Claimant), his widow and administratrix of his estate, has brought this action for wrongful death.

On the evening of June 27, 2004, at approximately 8:30 P.M., Decedent was operating his motorcycle southbound on Interstate 990 (I-990) in the Town of Amherst, Erie County, at or near the Sweet Home Road interchange when a collision occurred between Decedent's motorcycle and an automobile operated by Kenisha Shonte Walker (Walker) which was entering the southbound lanes of I-990 via the Sweet Home Road on ramp. As a result of injuries suffered in the collision, Decedent died on July 4, 2004 and Claimant seeks to impose liability on Defendant for failing to properly construct and/or maintain the on ramp resulting in an unsafe drop-off from the pavement at the shoulder which caused Walker to lose control of her vehicle. The trial of the Claim was bifurcated and this Decision pertains solely to the issue of liability.

I-990, also known as the Lockport Expressway, is a limited access, restricted-use highway owned and maintained by Defendant with three lanes running in opposite directions (north and south) separated by a median at the Sweet Home Road interchange. The posted speed limit on the highway is 65 mph and the speed limit for the southbound Sweet Home on ramp is 30 mph. The construction of the highway was completed in 1984 and the southbound on ramp was resurfaced in 1995 or 1996.

Walker, who was seventeen years of age at the time of the accident, testified at a deposition held on January 7, 2010 that she has little or no recollection of the events leading up to the unfortunate accident of June 27, 2004. Walker acknowledged that she was interviewed by Town of Amherst police officers the night of the accident and provided a statement indicating that she was driving her grandmother's automobile from her aunt's home in Amherst to Buffalo-Niagara International Airport to visit her mother who is an airline flight attendant. She stated that immediately before the accident it felt like the tires of the vehicle were not gripping the road causing her to lose control on the ramp.

More specific details of the accident were recounted by the three people who were riding motorcycles with Decedent while traveling from his residence in Lockport to the City of Buffalo: his brother Terry Marrow, nephew Terrelle Marrow and friend Donald Watkins, all of whom testified at trial. The weather was clear, the road was dry and it was daylight. The witnesses indicated they were riding in the right lane of I-990 at approximately 50 mph in a typically staggered formation employed by motorcyclists with Terry in front on the left side of the traveling lane, Decedent in front on the right, Donald behind Terry and Terrelle behind Decedent. As they approached the Sweet Home Road interchange, Decedent motioned for them to move left into the middle lane to accommodate a vehicle merging onto I-990 via the southbound on ramp. The witnesses observed the driver of the Ford Taurus, later identified as Walker, lose control of the car, fishtail and eventually cross over a grass covered gore onto I-990 perpendicular to the southbound travel lanes into the path of Decedent's motorcycle which struck the vehicle in the left front. Terrelle's motorcycle also struck the car but he was not seriously injured. The witnesses all testified that the entire incident occurred in a matter of seconds and Decedent was unable to avoid the collision.

Claimant called eyewitnesses Joseph Shaw and Diane Shaw, his wife, who were traveling in an automobile a few car lengths behind the motorcyclists and witnessed the accident. Mr. and Mrs. Shaw testified that they observed the Walker car go out of control on the ramp and cross over the grass covered gore between the ramp and the southbound lanes of I-990 kicking up dirt, stones and debris before colliding with Decedent's motorcycle. Mrs. Shaw recalled that it appeared the Walker vehicle hit the shoulder of the ramp kicking up stones in an area south of the end of the left guide rail.

The accident was investigated by Senior Investigators Carl Fischer (Fischer), Scott Lawida (Lawida) and Charles Henderson (Henderson) of the Amherst Police Department who responded to the scene and testified at trial. The Court is satisfied that the officers are qualified by education, training and experience to conduct investigations and to reconstruct automobile accidents. According to their testimony, they began the investigation the evening of the accident by interviewing witnesses, examining the accident scene where the vehicles came to rest and examining both the roadway and shoulder of the southbound on ramp. Using an electronic total work station, they documented the location, relative to a point of origin, of tire marks, debris and other material of evidentiary value. They were looking for indications of the car leaving the pavement and any indication of tire marks to show how the car behaved during the loss of control prior to the accident. Fischer also took several photographs documenting their observations.

The officers found some tire marks on the pavement and in gravel along the shoulder of the on ramp which they assumed were caused by the Walker vehicle. The data collected was entered into a computer assisted diagraming program which produced a diagram or map predicting how the car may have behaved based on the evidence found at the scene. Using the tire marks and computer generated data, the officers concluded that the vehicle dropped off the left side of the driving surface onto the shoulder adjacent to the guide rail where the driver lost control attempting to return the vehicle to the proper lane of travel. The officers conceded that the Walker vehicle did not strike the left guide rail and there is no proof that the tire marks were caused by this vehicle. They also admitted that an inspection of the vehicle tires did not reveal any damage or evidence of the tires scrubbing on the edge of the asphalt paving.

The police accident repor prepared by Lawida indicates that human factors contributing to the accident were unsafe speed and unsafe lane changing on the part of Walker who was issued traffic summonses for reckless driving, unsafe speed on a curve, failure to stay in lane and driving on the shoulder. Walker satisfied all charges by pleading guilty to driving on the shoulder. Lawida testified that, in his opinion, unsafe speed and driver inexperience were factors contributing to this accident.

Claimant offered the pre-trial deposition testimony of Michael F. Lydle (Lydle), a New York State Department of Transportation (NYSDOT) Civil Engineer II, with respect to the construction and maintenance of the southbound on ramp of I-990. Lydle indicated that the ramp was originally constructed in 1984 and in the mid-1990's a two-layer armor coat was applied over the existing pavement as part of a pavement maintenance project. The armor coat did not extend the full width of the paved portion of the on ramp as originally constructed creating a differential in elevation between the travel lane and the shoulder, sometimes called a drop-off. Lydle admitted that drop-offs pose a safety concern known as "scrubbing" which occurs when a vehicle drops off the roadway and a tire catches the edge of the pavement causing the driver difficulty in steering the vehicle back onto the roadway.

The relative safety of such differential is evaluated in Section 2.110 of the NYSDOT Highway Maintenance Guidelines (Guidelines) which were in effect in the mid-1990's. The acceptability of the height of the drop-off is based on the shape of the edge and the Guidelines chart the relative safety of three types of edge conditions. Shape A is characterized as a vertical drop-off with a 90or slightly rounded top edge, Shape B is a continuing radius curve from the top edge to the shoulder level, and Shape C is a 45ramp-like face. The drop-off of a Shape A pavement edge goes from "reasonably safe" to "marginally safe" at a maximum height of three inches. By contrast, the drop-off of a Shape B pavement edge goes from "reasonably safe" to "marginally safe" at a maximum height of nearly four inches. Based upon the maximum height of the drop-off estimated at two and one-half inches and the contour of the edge as Shape B, Lydle concluded that the shoulder of I-990 southbound on ramp at Sweet Home Road was maintained in a reasonably safe condition such that at the time of the accident a prudent driver of a reasonably maintained vehicle would experience no significant problem in traversing the pavement edge. Having reviewed the photographs in evidence, the Court accepts Lydle's description of the edge profile as Shape B as illustrated in the Guidelines. Moreover, Lydle's testimony and the photographs establish that the drop-off throughout the subject area of the ramp was well within the parameters considered reasonably safe for any edge profile.

John Serth, Jr., a professional engineer with considerable private and public sector experience, offered expert testimony on behalf of Claimant. He visited the site in August, 2005 to take photographs and measure the drop-off from the top of the pavement to the shoulder in the area where he believes the Walker vehicle dropped off the travel surface which differs from the accident reconstruction report of the Amherst Police Department. He observed the drop-off point to be south of the end of the left guide rail where the drop-off measured between two and two and one-half inches. Although Serth was not certain that the tire marks found by the Amherst police the day after the accident were caused by the Walker vehicle, he concluded that the accident would not have happened without a pavement edge drop-off. It is his opinion that the drop-off created by the resurfacing project was not in compliance with the requirements of the NYSDOT Pavement Rehabilitation Manual for proper shoulder construction or maintenance and caused a trap for unwary motorists.

Lawrence M. Levine, a licensed professional engineer with a Master's Degree in Transportation and Civil Engineering, offered expert testimony on behalf of Defendant. Levine visited the site, took measurements of the road and performed a ball bank test on the ramp. He also took photographs and reviewed information provided by NYSDOT, including traffic volumes and accident history for the ramp. Based upon the ball bank test and the posted speed limits, Levine opined that the ramp was signed properly. The report of traffic volume and accidents for the ramp indicate that it is heavily traveled with an average of 8,000 vehicles daily with very few accidents and no fatalities for the period of 1996 to 2004. Other than this accident, there is no report of an accident resulting from a vehicle leaving and reentering the roadway of this ramp. In contrast to Serth, Levine determined that the armor coat, as applied, was within the acceptable limits of the Guidelines and that the drop-off edge within the shoulder was considered safe, or at least reasonably safe under NYSDOT standards.

Using the information from the police accident report, Levine attempted to plot the site where Walker left the road and concluded that the tire marks found by the officers were not created by the Ford Taurus but by a much larger vehicle. He also opined that if the Walker vehicle had left the paved surface at the point determined by the police it definitely would have hit the left guide rail. Based upon the foregoing, Levine opined that the accident was not caused by scrubbing but by excessive speed and driver inexperience which caused Walker to lose control of the vehicle and immediately attempt to regain control rather than choosing the more prudent and available option of stopping her vehicle.

It is well settled that the State has a nondelegable duty to adequately design, construct and maintain its roadways in a reasonably safe condition (see Friedman v State of New York, 67 NY2d 271, 283 [1986]; Weiss v Fote, 7 NY2d 579, 584 [1960]), but it is not an insurer for motorists who travel on State highways and the mere happening of an accident does not render the State liable (see Tomassi v Town of Union, 46 NY2d 91, 97 [1978]; Brooks v New York State Thruway Auth., 73 AD2d 767, 768 [1979], affd 51 NY2d 892 [1980]). "When the State or one of its governmental subdivisions undertakes to provide a paved strip or shoulder alongside a roadway, it must maintain the shoulder in a reasonably safe condition for foreseeable uses" (Bottalico v State of New York, 59 NY2d 302, 304 [1983]; see also Stiuso v City of New York, 87 NY2d 889, 891 [1995]). "Injuries arising from a traveler's use of an improperly maintained roadway shoulder may be compensable through application of general principles of negligence and comparative negligence" (Bottalico v State of New York, supra at 304-305). To prove liability on the part of the State, Claimant must establish the existence of a dangerous condition, that the State either created or had actual or constructive notice of the condition, that it failed to remedy or warn of the condition, and that such failure was the proximate cause of decedent's injuries (see Brooks v New York State Thruway Auth., supra at 768; Gordon v American Museum of Natural History, 67 NY2d 836 [1986]; Lomax v State of New York, 15 Misc 3d 1105[A] [2007]). "The highway may be said to be reasonably safe when people who exercise ordinary care travel over it in safety" (Boulos v State of New York, 82 AD2d 930, 931 [1981], affd 56 NY2d 714 [1982]). Moreover, in the field of traffic design engineering, Defendant is accorded a qualified immunity from liability arising out of a highway planning decision unless the study was plainly inadequate or there was no reasonable basis for its plan (see Friedman v State of New York, supra at 286; Weiss v Fote, supra at 589). While Claimant's expert disagreed with the conclusions of Defendant's highway engineer and expert, such judgmental decisions are precisely the kind which are clothed with qualified governmental immunity under Weiss v Fote (supra at 585-586). There has been no showing that the State's deliberative process concerning the resurfacing of the ramp was inadequate or that its armor coat paving plan lacked a reasonable basis (see Friedman v State of New York, supra at 284).

Upon review of all the trial evidence, including listening to the witnesses testify and observing their demeanor as they did so, the Court finds that Claimant has failed to establish that the drop-off posed an unreasonably dangerous condition which should have been remedied prior to this accident (see Bottalico v State of New York, supra; Sevilla v State of New York, 111 AD2d 1046 [1985]). Further, Claimant failed to establish that the drop-off was the proximate cause of the accident. Claimant presented no physical evidence that the Walker vehicle encountered a scrubbing hazard in the area in which the vehicle purportedly left the pavement. The crash investigation team based its conclusion of a scrubbing reentry on tire marks found the day after the accident which both experts doubt were caused by the Walker vehicle. By all accounts, Walker, an inexperienced driver, was traveling too fast and, if the vehicle did leave the travel lane, she simply overcorrected her steering causing her to fishtail and lose control in the manner described by the eyewitnesses. Absent convincing proof that the drop-off played a role in causing Walker to lose control of the vehicle, Claimant has not established a basis for liability (see Van De Bogart v State of New York, 133 AD2d 974 [1987]).

"Where the facts proven show that there are several possible causes of an injury, for one or more of which the defendant was not responsible, and it is just as reasonable and probable that the injury was the result of one cause as the other, plaintiff cannot have a recovery, since he has failed to prove that the negligence of the defendant caused the injury" (Ingersoll v Liberty Bank of Buffalo, 278 NY 1, 7 [1938]). Additionally, "something more than a mere choice between conflicting opinions of experts is required before the State or one of its subdivisions may be charged with a failure to discharge its duty to plan highways for the safety of the traveling public" (Weiss v Fote, supra at 588).

In sum, there is no basis for finding that Defendant was negligent or that any negligence attributed to Defendant was a proximate cause of this tragic accident. Rather, it appears that the sole proximate cause of the accident was Walker's inability to maintain control of her vehicle as she attempted to negotiate a ramp with which she was not familiar (see Schwartz v New York State Thruway Auth., 95 AD2d 928, 929 [1983], affd 61 NY2d 955 [1984]).

Accordingly, the Claim is dismissed and all motions not previously ruled upon are hereby denied.

LET JUDGMENT BE ENTERED ACCORDINGLY.

August 15, 2011

Buffalo, New York

JEREMIAH J. MORIARTY III

Judge of the Court of Claims