Opinion
# 2012-045-503 Claim No. 113754
04-12-2012
THOMPSON v. THE STATE OF NEW YORK
Synopsis
trial decision, roadway case, failure to install left turn signal at intersection. Case information
UID: 2012-045-503 Claimant(s): CYNTHIA THOMPSON INDIVIDUALLY AND AS ADMINISTRATRIX OF THE ESTATE OF JASON THOMPSON, DECEASED Claimant short name: THOMPSON Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant (s): Third-party defendant (s): Claim number(s): 113754 Motion number(s): Cross-motion number (s): Judge: Gina M. Lopez-Summa Ras Associates, PLLC Claimant's attorney: By: Luis F. Ras, Esq. Hon. Eric T. Schneiderman, Attorney General Defendant's attorney: By: John M. Shields, Assistant Attorney General Third-party defendant's attorney: Signature date: April 12, 2012 City: Hauppauge Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
A bifurcated trial concerning the issue of liability only was held in this matter. The subject claim arose on November 30, 2006 at approximately 6:05 p.m. at the intersection of Gnarled Hollow Road and New York State Route 25A in East Setauket, New York.
At that time, decedent, Jason Thompson, was driving his motorcycle eastbound on 25A while another vehicle driven by Alejandra Kyle was being operated on the westbound side of 25A. As Mr. Thompson proceeded through the intersection of 25A and Gnarled Hollow Road, with a green signal, the Kyle vehicle attempted to make a left hand turn across the eastbound lanes of 25A onto Gnarled Hollow Road in front of decedent's motorcycle. The two vehicles collided at the intersection of 25A and Gnarled Hollow Road causing the death of Mr. Thompson. At the accident site, 25A is a two lane roadway with one eastbound and one westbound lane of traffic separated by a double yellow line with the addition of a marked turning lane for westbound cars turning left. The intersection was controlled by a traffic signal owned and maintained by defendant the State of New York.
It was established at trial that in 2004 work on 25A was commenced pursuant to a resurfacing, restoration and rehabilitation project referred to as a 3R project (Contract No. D259681). The project encompassed a one mile stretch of 25A from Ridgeway Avenue to Old Coach Road in the Town of Brookhaven. The intended purpose of the project was to repair and resurface the existing roadway and improve safety.
The design report for the 3R project noted that the project needs included resurfacing of the pavement to correct wet weather and rear-end accidents and its objective was to correct pavement deficiencies, improve level of service to a "D" and improve safety by using cost effective accident reduction methods.
Defendant conducted a detailed accident analysis of 25A from Ridgeway Avenue to Old Coach Road covering a 39-month period from September 1996 through December 1999. There were 7.12 million vehicles traveling in this corridor per year or 19,500 vehicles per day. The analysis found that there were a total of 171 accidents during this time period for the entire corridor which was slightly higher than the statewide accident rate of 3.58 accidents per million. Between Old Town Road and Gnarled Hollow Road there were a total of 21 accidents, 15 of which were rear-end accidents. The predominant contributing factors were driving too closely and driver inattention. A significant amount of these accidents occurred in wet weather.
At or near the intersection of Gnarled Hollow Road and 25A, there were a total of 19 accidents. During this time period, there were only two left turn accidents where a vehicle was making a left turn onto Gnarled Hollow Road from 25A and came into contact with a vehicle traveling eastbound on 25A.
Alejandra Kyle
Alejandra Kyle testified that on the evening of November 30, 2006 she was operating her motor vehicle, a silver Mazda minivan, westbound on 25A when she entered the left turning lane located at the intersection of Gnarled Hollow Road. She described the roadway conditions at that time as being dry and dark with moderate traffic. She testified that she was a newly licensed driver but that she was familiar with the subject intersection. She described 25A at that location as a two lane roadway with one eastbound and one westbound lane of traffic with a center turning lane. She stated that westbound 25A was a roadway which curved toward the left in a southbound direction after the intersection.
She testified that while she was waiting to make the left turn, she observed vehicles traveling eastbound on 25A. She explained that she waited for this traffic to clear and then proceeded to turn left on a green signal. She stated that she did not believe it was a difficult intersection to make a left turn. She explained that her vehicle was completely facing south towards Gnarled Hollow Road when it was struck by decedent's motorcycle on the center passenger side of her vehicle. She testified that she never observed decedent's motorcycle before making the left turn.
Joseph Tacopina
Joseph Tacopina, a Suffolk County police officer since June 2001 testified that he was assigned to the area inclusive of 25A and Gnarled Hollow Road since June 2004. He testified that he has responded to approximately 5 accidents at the 25A and Gnarled Hollow Road intersection from 2004 through 2006. Only one of those accidents involved a left hand turn from 25A. He explained that in his experience there are less accidents at this intersection than on other portions of 25A.
Michael Simpson
Michael Simpson, a Suffolk County Police Officer testified that he was assigned to the 6th precinct patrol at the time of the accident and that he responded to the subject accident. He explained that he filled out the subject accident report. He set forth that the 6th precinct receives a daily bulletin of high accident locations and he did not recall the 25A and Gnarled Hollow Road intersection ever being on the bulletin.
Christopher Kyrkostas
Christopher Kyrkostas, a Suffolk County Police Department Detective, testified that he went to the scene of the accident on November 30, 2006 in order to commence a fatal accident investigation. As part of his investigation he spoke to the responding police officers and noted where objects were located in the roadway.
He testified that he prepared a report and noted that a streetlight on 25A was not operational. He also examined the traffic signal light and found it to be operating properly. He indicated in his report that lighting, weather and road conditions were not considered contributing factors in the happening of the accident.
He also explained that he is familiar with that particular intersection as he lives a few miles away. He stated that Run's Road which is west of Gnarled Hollow Road is a minor dead-end street. He testified that he never responded to any other accidents at this location and never noticed any problems with street lighting at this location.
Emilio Sosa
Emilio Sosa, a Civil Engineer 4, is employed by the New York State Department of Transportation (DOT) as the Director of Traffic and Operations. He testified that his job responsibilities include overseeing the INFORM system which is the traffic management system that controls overhead signs and cameras. He is also responsible for overseeing traffic signals, lighting, maintenance and operations. He explained that one of the department's functions is to receive calls relating to traffic signal malfunctions or other traffic signal problems and to refer the problem for appropriate corrective action.
Mr. Sosa testified that the 3R project included installation of new traffic signals and that there were traffic signal plans for each of the traffic signals. He explained that the traffic signal at the intersection of 25A and Gnarled Hollow Road was known as traffic signal # 26. He explained that the traffic light also controlled the movement of vehicles out of the driveway of a commercial establishment on the north side of 25A. He testified that traffic signal # 26 was a standard two phase signal with a traffic presence detector to determine if there were any vehicles waiting to leave the driveway of the commercial establishment. He explained that a traffic presence detector sends a signal to the traffic signal controller if there is a vehicle waiting in the driveway to exit. The traffic signal would then, at the appropriate time in the cycle, turn green for the driveway as well as Gnarled Hollow Road. He further described signal # 26 as a semi-actuated signal which signifies that the traffic presence detectors are on the side street. He explained that the signal reverts back to 25A after it is done servicing Gnarled Hollow Road and the driveway of the commercial establishment. Mr. Sosa testified that traffic signal # 25.8 is located at the intersection of Old Town Road and 25A. He explained that this signal has dedicated left turn arrow phases.
Mr. Sosa testified that the traffic signal design subgroup is responsible for designing traffic lights pursuant to the Manual for Traffic Control Devices. Mr. Sosa explained that the traffic signal designer has no discretion in the design. The design they prepare is based upon design reports, studies, and the assignment itself.
Mr. Sosa testified that in a 3R project, the roadway's accident history is reviewed to determine if there is any pattern of accidents that can be ameliorated by making traffic signal modifications. If there is no pattern of accidents, the traffic signals are designed without modifications.
Mr. Sosa explained that DOT has access to accident history through its access to a New York State Department of Motor Vehicles database that compiles accident reports. DOT generates a Safety Information Management System Accident Verbal Description Report which sets forth the reported accidents for the specified location. He explained that, separate and apart from the accident analysis for the 3R project, a report was generated for Gnarled Hollow Road and 25A for the time period July 1, 2004 through June 30, 2007 at a particular mile marker (Cl Exh 87). In this report there were 6 non-intersection accidents and 2 intersection accidents. When confronted with copies of 4 accident reports that were not included in the report, Mr. Sosa explained that three of the reports had different mile markers associated with them so he would not expect to see them in this report. He also stated that when an accident history analysis is done for a 3R project, it is standard to research a few additional mile markers in both directions so as to have a complete picture and capture all accidents in the vicinity.
Mr. Sosa testified that in his experience and review of the report (Cl Exh 87), the traffic signalization for 25A and Gnarled Hollow Road is adequate. He also stated that it is not necessary to conduct a left turn delay study to determine whether the signalization is appropriate.
Luis Garcia-Rios
Luis Garcia-Rios, a civil engineer employed by New York State Department of Transportation, testified that he was assigned to the signal sub-group from 2000 through 2010. During that time he designed traffic signals. He explained that he and Rebecca Gibson were the only designers in the sub-group. The practice in the group was to check each other's design work. He testified that he designed some of the traffic signal plans for the 3R project along 25A.
Mr. Rios testified that when he receives an assignment from the Design Group, Design provides drawings of the intersection and where the traffic signals are located. Design also sets forth what the traffic signal phases are to be. If this information is not provided, he would request the necessary plans. He explained that a field visit would be done to determine where to place the poles and to ensure that nothing would be obstructing a proposed signal. He explained that his unit functions only to design the signal plans, they do not conduct any studies nor make any recommendations as to what the signals should contain.
He testified that he did not design traffic signal #26. He explained that although he does not specifically recall checking this signal, he probably did check the plans. Checking the plans entails reviewing the layout, checking the sequence table, phase data and item numbers as well as checking for any spelling errors.
He described signal # 26 as a four phase traffic signal. He explained that the sequence table for the traffic signal determines what is installed. He testified that "install ball/arrow LED traffic signal module" refers to the type of light bulb used for red and green lights and that it did not mean install an arrow light. He also testified that this signal has a video vehicle presence detector on a pole on the southeast corner of Route 25A and Gnarled Hollow Road.
Rebecca Gibson
Rebecca Gibson, a civil engineer employed by New York State Department of Transportation, testified that she was assigned to the signal sub-group in 2003 in Region 10 and during her tenure she was responsible for designing traffic signals. She testified that she was familiar with the 3R project for the 25A corridor and that she designed the traffic signal plans for Signal 26 and 25.8 although she did not recall how she came to be assigned to this traffic signal. She explained that when she received the assignment she would have been informed of the plan specifications and estimate and would have completed the assignment with that date in mind. Once she received the assignment she would have visited the location and looked at the traffic signals to determine their age and size. She would also examine the area for locations to place the poles and to determine if there were any utility conflicts. She stated that she may have seen the design report but does not recall if she used it.
She testified that she left the Long Island region prior to any modification to signal 25.8. She explained that a protected/permissive phase is a traffic signal head that has a left turn arrow. There will be a green arrow for protected left turns, then a yellow arrow and then a green ball, where the driver is permitted to turn left when it is safe to do so. She testified that fully protected left turn arrows are generally for very major intersections that are multilane in each direction.
She testified that Signal #26 was designed without any changes to its current format. However, she explained that her design involved the addition of a signal for the driveway across the street from Gnarled Hollow Road. Specifically, a video presence detector and signal head were added because on her site visit she learned that there were no signal phases facing the driveway. She elaborated that any decisions for additional equipment would be made by someone else and she would have been instructed what to design.
She testified that it was not her responsibility to perform traffic counts or to review delay analysis.
Richard Causin
Richard Causin, a Transportation Maintenance Engineer at DOT testified that he managed the Signal Design Unit from 2004 through 2008. He stated that he has a Civil Engineering degree as well as a Masters in Construction Management. He explained that he was familiar with the instant 3R project for 25A. He explained that a Design Report was done by a consultant for the purpose of guiding the 3R project. The consultant performed the accident analysis, level of service analysis and volume counts to determine how limited resources are best allocated. He explained that the DOT provides a consultant manager who is assigned to the consultant to help guide the report and provide necessary information. He also testified that he does not recall looking at the report in 2004. He explained that his staff would have reviewed it although they would not use it to design the traffic signals.
He explained that 25A is an arterial roadway with low speed and low volume. He also explained that the design of Signal # 26 never indicated a left turn. He testified that once a signal is assigned to a person in the unit, that person would speak to the designers of the job, conduct field observations of the area and compare what is being built as part of the 3R job to the actual field conditions. They would then commence figuring out the layout of the traffic signal poles and span wire. He explained that the designer would have discretion in how to configure and place the traffic signal. He also explained that the designers do not collect vehicle data such as accident analysis and volume counts.
Mr. Causin testified that when determining whether to add a left turn signal, the best information is in the 3 year accident history. He explained that the level of service analysis to be reviewed included traffic volume data for each particular movement and for the intersection as a whole. He explained that a level of service "A" would indicate that there are no delays to any movement at or through an intersection because there are few or no cars around you. With a level of service "C" a vehicle could make a left turn between car movement. With a level of service "F" a vehicle would have to wait for the light to turn yellow or red before it could turn left. He then explained that if a pattern of accidents was beginning to present itself, the next step would be to conduct a left turn analysis. On a low volume roadway, he would consider a pattern of 12 accidents as significant. He explained that left turn analysis are usually only done where there are a pattern of left turn accidents in the accident history, levels of service for left turns approach a level "F" or if there is a request from a politician. He also explained that sight lines and road curvature are taken into consideration in determining whether or not to include a left turn arrow phase. He explained that a left turn analysis is not the best way of determining if a left turn phase is warranted at a particular intersection, the accident history is the best.
He further explained that an engineering decision would be made to determine whether or not a particular feature on a road would be installed. He stated that those decisions are guided by warrants which are akin to check lists or guidelines and how many warrants are met. He testified that neither the level of service nor the accident history warranted a left turn signal for the intersection of 25A and Gnarled Hollow Road.
He also explained that a protected left turn signal does not necessarily make an intersection safer for travel. There is a need to also consider the financial impact and the impact of unneeded delays at intersections which lead to aggressive driving.
He set forth that the intersection of 25A and Old Town Road was widened to add left turn lanes in all directions. He explained that this intersection was wider than most on 25A with three directions having three lanes of traffic and the last direction having four lanes of traffic. In contrast the intersection of 25A and Gnarled Hollow Road is a simple intersection with one lane of traffic in each direction. The intersection has a gas station that is controlled by the traffic light. Runs Road to the east of the intersection is approximately 18 feet away from the intersection and is not controlled by the traffic light. Runs Road leads to a private piece of property and therefore does not have a significant impact to Gnarled Hollow Road because there is no real traffic volume.
David Smith
David Smith, the Supervisor for the Traffic Signal Design and Operations group from 1992-2003, testified that he directly supervised Rebecca Gibson and Luis Garcia. He also explained that he reported to Richard Causin.
He testified that he did not do any work with the 3R project. The design memorandum for signal #26 indicated that traffic signal plans needed to be created (Cl Exh 95). He explained that since the memorandum was silent as to phases it implies that the signal would be designed in kind, with the same phasing it currently has.
Tom Temistokle
Tom Temistokle, a Civil Engineer 2 in the Traffic and Safety Unit since 1992, testified that he came to Region 10 in February 2005 as a Traffic Control supervisor and that his responsibilities include investigating issues that people write in or complain about. He explained that a left turn delay analysis is one of the things that is done to determine if a left turn arrow should be installed. The analysis consists of the total number of vehicles delayed beyond 60 seconds, the number of vehicles waiting to make a left turn and the number of vehicles unable to make a left turn during the light cycle. The intersection is studied for two hour intervals once in the morning and again in the afternoon. He stated that such an analysis was not done for the intersection of 25A and Gnarled Hollow Road however such an analysis is not something that is ordinarily performed for a 3R project.
He testified that since the 3R project had a design report, there was no need for the DOT to further consult the police reports of accidents in the area as that effort had already been made in the design report. From his review of the design report neither the level of service nor the accident history warranted a protected left turn signal for signal #26.
Gary Moeller
Gary Moeller who works in the Construction Department at the DOT testified that he was involved in the 3R project from 2005 through 2007. He stated that Johnson Electric was the contractor responsible for single light pole installation and maintenance as well as installation of the ornamental lights for the project. He testified that there were ornamental lights on the northeast corner of Gnarled Hollow Road and 25A. Mr. Moeller explained that the Construction Department had an inspection staff who would complete daily reports regarding the work being done. He testified that the project was still ongoing on December 5, 2006 as they were still completing punch list items before final acceptance. He testified that no lighting problems were mentioned on the December 5, 2006 punch list.
Frank Pearson
Frank Pearson, the Director of Traffic Engineering at the DOT for Region 10, was initially called to testify by claimant in this matter. He stated that his office is also known as the Office of Traffic and Safety. He confirmed that Johnson Electric was the electrical subcontractor for the project. He testified that he did not sit in on any meetings where signal design was discussed and was not aware that a consultant was used to gather data and prepare a design report.
He testified that a left turn delay analysis is not performed as part of a 3R project unless a specific request for a left turn arrow is received. He explained that if there is a request they only look at the specific intersection at issue and not entire areas of the roadway. He continued that there are only 4 people in the group who conduct these studies and there are over 1,200 traffic signals in the Region.
Mr. Pearson testified that the Signal Design Group is under the auspices of his office. He explained that the request to design plans for traffic signals at Gnarled Hollow Road, Old Town Road and two shopping centers included a pavement marking plan. He explained that the Design Group would also have to provide more detailed information such as right of way maps, utility pole locations and existing sign locations. He elaborated that the job would have a scope and the designers would design to the scope of work.
Mr. Pearson testified that this 3R report does not specify the type of signals required for signals 25.8 or 26. He explained that the 3R report had capacity analyses for each intersection which shows existing and future conditions and whether or not turn arrows were included as part of the analysis.
He explained that although DOT received written comments requesting protected left turn signals at all of the intersections at the public information meeting held on May 22, 2003, these comments would not necessitate a traffic study.
Mr. Pearson testified that his group had discussions regarding the signal at Old Town Road. He explained that the original design only included one dedicated left turn phase. He testified that DOT received a letter from a member of the Assembly requesting the additional dedicated protective/permissive left turn arrows and as a result of the request a study was conducted. A determination was made that the additional left turn arrows were appropriate and three additional dedicated protective/permissive left turn phases were added to the signal at Old Town Road. Mr. Pearson stated that the studies would have been based upon the information already contained in the design report for the 3R project as well as additional studies. He explained that their analysis was done subsequent to the 3R report but not independent of it as it used data from the 3R design report.
Nicholas Bellizzi
Nicholas Bellizzi, a licensed Professional Engineer with a background in traffic and highway engineering and accident reconstruction, testified on behalf of claimant.
He testified that he visited the site, reviewed the traffic signal plans, the Design Report and DOT documents and memoranda for the 3R Project.
He explained that a 3R project does not require everything associated with the roadway to be brought up to current standards, it replaces what already exists with the same facilities. From his review of the design report, Mr. Bellizzi stated that correcting poor pavement was the reason the 3R project was commenced as the accident history showed a problem with rear-end and wet weather accidents. He conceded that there was no reference to left turn accidents in the report. He also set forth that although there was a reference to the curve at the bend in 25A near Gnarled Hollow Road, the accident history established that there was no operational or accident problem associated with the curvature of the roadway. Lastly, he testified that the design report did not consider left turn arrows at any of the five intersections and that the left turn arrows for signal 25.8 came subsequent to the design report.
Mr. Bellizzi described the intersection at 25A and Gnarled Hollow Road as an offset intersection. He stated that 25A curves past the intersection of Gnarled Hollow Road and that parked vehicles on 25A could adversely affect sight distance. He explained that a westbound left turn from 25A onto Gnarled Hollow Road would conflict with eastbound through traffic on 25A and that any conflict point has the potential for an accident.
Mr. Bellizzi opined with a reasonable degree of engineering certainty that signal #26 at Gnarled Hollow Road and 25A should have been equipped with a dedicated protective/ permissive left turn arrow for vehicles turning left onto Gnarled Hollow Road. He based this opinion on the traffic volume data and intersection turning movement data for Signal #26. He testified that as compared to signal #25.8, there are greater conflict volumes for Gnarled Hollow Road than Old Town Road. In addition, Mr. Bellizzi stated that the Gnarled Hollow Road intersection had unique features that made it less safe than other intersections such as curvature of the roadway, approaches to the roadway, sight distance limitations due to road curvature, and parked vehicles. He also opined with a reasonable degree of engineering certainty that the geometry and configuration of the intersection would factor into whether or not a protective/permissive left turn arrow should be installed. However, Mr. Bellizzi explained that the data he used to render his opinion was the projected 10 year estimate of traffic levels for the year 2017 and not the current numbers. Based on the current data, he conceded that Old Town Road had more significant delays than Gnarled Hollow Road.
Mr. Bellizzi testified that had DOT analyzed cycle length and the number of left turns that could be made based upon the projected data there would be no need for a protected/permissive left turn signal at Old Town Road or at Ridgeway Avenue. He opined that the signal at Gnarled Hollow Road should have been studied further because there would be more cars waiting to make left turns at the intersection than allowable by the cycle length.
He testified that the potential disadvantage for a left turn arrow is the delay it would cause. He explained that since the Gnarled Hollow Road intersection had a good level of service a left turn arrow could be installed without any disadvantage. He testified that Gnarled Hollow Road is operating at a better level of service than Old Town Road and Ridgeway Avenue.
On cross-examination, Mr. Bellizzi agreed that there are other differences between the intersections at Old Town Road and Gnarled Hollow Road. Old Town Road and 25A have three travel lanes in three of the four directions and four travel lanes in the last direction. At 25A and Gnarled Hollow Road, there are two travel lanes in each direction and after the 3R project the center left turning lanes were added. He explained that one role of the left turning lane is to remove turning vehicles from through traffic which results in less rear-end accidents and more freely flowing through traffic.
Mr. Bellizzi testified that the New York State Highway Design Manual is most authoritative with regard to New York State highway design projects and that engineering discretion is permitted. He stated that the manual does not have any guidelines or check lists or warrants for left turn signals and protective left turn components of signals. He stated that the Federal Highway Administration suggests certain circumstances when protective left turn signals might be considered. Those include four or more left turn crashes within a year; a left turn crossing three or more lanes of traffic and multiple left turn lanes.
Mr. Bellizzi testified as to the importance of looking at the accident data when evaluating level of service and delays. He conceded that there were more accidents at Old Town Road and the Shopping Center than at Gnarled Hollow Road. Mr. Bellizzi also conceded that the delays at Old Town Road were much more significant than the delays at Gnarled Hollow Road and that Gnarled Hollow Road had a better level of service than Old Town Road. At Old Town Road the delays to make a left turn ranged from 9 to 69 seconds. At Gnarled Hollow Road there were only minor delays from 7 to 10 seconds. At Old Town Road, the level of service for left turns at the intersection was a D. At Gnarled Hollow Road the level of service for left turns at the intersection was a B. He testified that the left turn signal at Old Town Road, would increase delay and degrade the level of service.
Russell Murphy
Russell Murphy, testified on behalf of defendant. He explained that he has been with the DOT since 1984 and is presently a Civil Engineer 3. He supervises the Design Unit. He testified that in 2006 he was a Civil Engineer 2 and was the design squad leader responsible for developing plans for construction.
He testified that a 3R project works within the existing blueprint of the roadway and involves minor work of resurfacing the roadway and addressing safety issues. He explained that a 3R project does not involve lighting as lighting is the town's responsibility. Mr. Murphy stated that the purpose of the subject 3R project was to resurface the roadway in order to improve skid resistance because the pavement had a poor rating. He explained that if pavement has poor skid resistance there are more rear-end type accidents. He explained that the Planning Department receives the scope of work and funding and creates an initial project proposal. Once the project is approved, the "ownership" of the project is transferred from the Planning Department to the Design Unit. The Design Unit reviews the initial project proposal and creates a draft design report. This draft design report is reviewed throughout the process for consistency with DOT policies. In this case, the DOT also held a public information meeting although there is no requirement to have such a meeting. The DOT addresses the public's concerns within the scope or confines of the project. Once the draft design report is approved it becomes a final design report. The Regional Design Engineer then recommends the project to the Regional Director for approval. Once the Regional Director signs the report, it becomes a final design report which outlines the scope of the project. Only after the design is approved are plans created. Mr. Murphy further explained that there are advanced plan reviews where the plans are distributed to all the different departments in the DOT for review, comment and suggestion. Mr. Murphy explained that his group received the comments and addressed relevant concerns. His group then created final plans which are called Plan Specifications and Estimates and the plans were formalized. The Design and Quality Assurance Bureau then reviews the consistency of the plans to ensure that the plans meet their qualifications. Once completed, the contract goes out to bid so the improvements can be made.
Mr. Murphy testified that he created the body of the design report with the assistance of associates who performed the accident analysis and the level of service analysis although the report does not indicate that it was written by him. He explained that he went out to the project location over 100 times and reviewed all the data contained therein including the accident history, level of service analysis and delay information.
He testified that center lanes were added to 25A east and west of its intersection with Gnarled Hollow Road in order to remove left turning traffic from the through lanes to minimize through traffic delays and rear-end accidents. He explained that in regard to the information they receive at public meetings, it is not possible to perform a formal study on each comment nor does the DOT incorporate all of the comments into the design report.
Mr. Murphy testified that sight distance at the intersection of Gnarled Hollow Road and 25A is addressed in the design report. A field observation noted that northbound traffic had sight distance limitations to the east which impacted right turns. It was addressed by prohibiting right turns from Gnarled Hollow Road onto 25A on red signals by installing a no right turn sign. There were no field observations of sight distance with regard to east or westbound traffic on 25A. He also testified that he went to the intersection and confirmed that sight distance on 25A for east and westbound traffic was adequate.
He testified that the 3R report went to all the various departments for their comments and some comments were incorporated into the final plan.
Mr. Murphy opined with a reasonable degree of engineering certainty that a protective/permissive left turn signal was not warranted at the intersection of Gnarled Hollow Road and 25A. He based this opinion on his review of the design report, the accident history, level of service and delay analysis and visits to the site.
Frank Pearson
Frank Pearson, the Director of Traffic Engineering at the DOT for Region 10, also testified on behalf of defendant. He testified that he has been with the DOT since 1981 and has been the Regional Traffic Engineer of the Traffic Engineering Safety Group since 2002. He explained that there are 5 or 6 groups that he supervises, such as traffic control, safety evaluation and development, highway group, signal operations group, inform group and school bus inspections.
He testified that he was familiar with the 3R project and the design report. He stated that he reviewed the accident data, level of service and delay studies contained in the report. He also set forth that he was familiar with the general layout of the area and what existed prior to the project. He did testify that with respect to the Gnarled Hollow Road and 25A intersection there was a single lane in each direction controlled by a traffic signal. He described it as a T intersection with a minor driveway at one end. At Gnarled Hollow Road and 25A, a center turn lane was added to remove left turning vehicles from the through traffic lanes to provide the left turning vehicles a safe waiting space to make their turns. He described Old Town Road as a four way intersection with exclusive left turn lanes for each approach. The 3R project added an eastbound right turn lane.
Mr. Pearson testified that the decision to add a left turn arrow would be his to make if his office received a request for a left turn arrow. He explained that his office would conduct studies, such as left turn delay analysis as well as review accident data, to determine if a left turn arrow would be appropriate. He explained that a left turn delay analysis is one piece of information that can be used to determine the number of phases in a traffic light, however the accident data is more significant than delay analysis. Mr. Pearson testified that a decision to add a left turn arrow could also be made pursuant to a capital improvement project. He explained that the Planning and Design would prepare project development reports, review accident history, traffic volumes and conduct a level of service capacity analysis. Based upon an analysis of this data, if warranted, a recommendation for a left turn arrow could be made. Mr. Pearson testified that 2 left turn accidents in a 39-month period is not significant and does not indicate the need for a left turn arrow. He testified that in the last 9 years, out of thousands of requests, approximately 100 protective/permissive left turn signals have been approved.
He testified that he measured sight distance for east and westbound traffic at the intersection of Gnarled Hollow Road and 25A and the sight distance of 300 feet was adequate. He explained that although the 3R report noted that the curve had a substandard radius no action was needed based upon the lack of accident history and the adequacy of the sight distance.
He testified that he also reviewed the level of service and delay information for the Gnarled Hollow Road/25A intersection. He disagreed with Mr. Bellizzi's conclusion that there should be a protective/permissive left turn arrow at Gnarled Hollow Road and 25A because there was enough capacity to absorb the delay caused by such a signal. He explained that DOT does not base the decision on whether or not to install a left turn arrow on whether such a device would fail to impact delay. He testified that decisions to install a left turn arrow are based upon accident data and capacity analysis.
He testified that Johnson Electric was the subcontractor for the project and they were responsible for the electrical aspects of the area.
Mr. Pearson opined with a reasonable degree of engineering certainty that a protective/permissive left turn signal was not warranted at the Gnarled Hollow Road and 25A intersection based upon the level of service analysis, delay analysis, and accident history. He explained that even if there were greater left turn movements at Gnarled Hollow Road than at Old Town Road, that is only one consideration for installation of a left turn signal and according to the Federal Highway Administration when the product of opposing movements exceeds 50,000 vehicles, it is only one consideration for a left turn signal. Mr. Pearson testified that level of service analysis looks at the number of lanes, opposing volume, amount of green time available, turning movements and pedestrian phases. He testified that whether or not an intersection has a higher level of service and can accept an additional phase on a signal is not a consideration or an analysis that is used in determining whether to add a left turn signal. The determination to add a left turn signal is based upon level of service analysis, delay analysis, and accident history.
Mr. Pearson testified that there were 5 intersections involved in the 3R project and left turn arrows were added to 3 or 4 of the 5 intersections. He explained that DOT evaluated Old Town Road and 25A for left turn signals based upon a specific request for that intersection from a member of the assembly and not because of any comment in the public information meeting. The Traffic Control group made the recommendation to add the left turn signals at Old Town Road.
Law
The State of New York has a duty to maintain its roadways in a reasonably safe condition and the breach of that duty can result in liability to the defendant if the ascribed negligence in maintaining the road is a proximate cause of the accident (Friedman v State of New York, 67 NY2d 271 [1986]). In addition, the State has a nondelegable duty to properly design, construct and maintain its roadways in a condition which is reasonably safe for those who use them (id.). This includes the duty to design, install, operate and maintain traffic control devices, to require, warn and guide vehicular traffic at intersections under the State's ownership and control (see Vehicle and Traffic Law § 1681; Wood v State of New York, 112 AD2d 612 [3d Dept 1985] or Marren v State of New York, 142 AD2d 717 [2d Dept 1988]). However, the State is not an insurer of the safety of its roadways, and the mere fact that an accident resulting in injury occurred does not render the State liable (Tomassi v Town of Union, 46 NY2d 91 [1978]; Brooks v New York State Thruway Auth., 73 AD2d 767 [3d Dept 1979], affd 51 NY2d 892 [1980]). In order to recover damages for a breach of this duty, claimant must establish that defendant created or had actual or constructive notice of the dangerous condition and that it failed to take reasonable measures to correct the condition (Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]).
Additionally, the State is entitled to qualified immunity for the design and planning of its roadways including the decision as to whether to install traffic control signals (Weiss v Fote, 7 NY2d 579 [1960]; Friedman v State of New York, 67 NY2d 271 [1986]). Once the State is made aware of a dangerous traffic condition it must undertake a reasonable study with an eye toward alleviating the danger and after the State implements a traffic plan it is under a continuing duty to review its plan in light of its actual operation (Friedman v State of New York, 67 NY2d 271, 284 [1986]). The qualified immunity may be overcome by a showing that the State was negligent in failing to implement a remedial highway planning decision once it has been made or that the plan was either evolved without adequate study or lacked a reasonable basis (see Brown v State of New York, 79 AD3d 1579 [4th Dept 2010]). To meet this burden, claimant must evince something more than a mere choice between conflicting opinions of experts (Weiss at 588).
Analysis
As a preliminary matter, claimant seeks application of the Noseworthy Doctrine (Noseworthy v City of New York, 298 NY 76 [1948]). The doctrine permits the fact-finder greater latitude in considering circumstantial evidence of negligence in a case where the person in the best position to describe what happened has died, potentially as a result of Defendant's wrongdoing (Rivenburgh v Viking Boat Co., 55 NY2d 850 [1982]). The purpose of the rule is to prevent the tortfeasor who inflicts personal injury from being insulated from liability simply by staying quiet about the facts because the decedent is unable to testify (Noseworthy, 298 NY 76, supra). Here, however, the doctrine has no application, defendant has no more knowledge of the facts surrounding the accident than claimant (Yefet v Shalmoni, 81 AD3d 637 [2d Dept 2011]).
Claimant contends that the intersection of Gnarled Hollow Road and Route 25A at the time of the accident was unreasonably dangerous due to malfunctioning streetlights and multiple vehicular accidents. Claimant further contends that defendant is not entitled to absolute immunity as they failed to conduct an adequate study of the intersection and that the modification defendant adopted lacked a reasonable basis. Defendant argues that there was no dangerous condition and even if there was they are entitled to absolute immunity.
Claimant has failed to prove that a dangerous condition existed or that the condition constituted a defect.
The evidence fails to establish that there is any significant accident history at this intersection. The evidence established that a detailed accident analysis was conducted for the entire 1 mile length of the project and was made part of the 3R design report. The accident analysis covered a 39-month period from September 1996 through December 1999. There were 7.12 million vehicles per year or 19,500 vehicles per day traveling in this corridor and there were a total of 171 accidents during this time period. At or near the intersection of Gnarled Hollow Road and Route 25A, there were a total of 19 accidents. During this time period, there were only two left turn accidents where a vehicle was making a left turn onto Gnarled Hollow Road and came into contact with a vehicle traveling eastbound on Route 25A. Additionally, it was established that the Gnarled Hollow Road intersection with Route 25A has never been on a police department bulletin as a high accident location.
If a particular location of roadway lacks a significant accident history of similar accidents, the State is not on notice of a dangerous condition requiring study or remediation (see Friedman v State of New York, 67 NY2d 271, 284 [1986]). In this case, the paucity of left turn accidents, given the volume of traffic at the location, does not establish a significant accident history. Thus the State was not placed on notice of a dangerous condition at this intersection.
Generally, a municipality may not be held liable in negligence for its failure to maintain streetlights (Thompson v City of New York, 78 NY2d 682 [1991]). The mere fact that a streetlight is burned out and that the street was dark is not sufficient to render a street dangerous (Rios v City of New York, 33 AD3d 780 [2d Dept 2006]). Claimant has failed to establish that the lighting condition at the time of the accident was a proximate cause of the accident. Ms. Kyle, testified that, even though she was a newly licensed driver, she was familiar with the intersection. She also testified that as she was waiting to make her left turn, she was able to see other vehicles approach and pass her location. The accident report also indicated that lighting conditions were not a contributing factor in the happening of the accident. Thus the evidence failed to establish that the lighting or lack thereof was a contributing factor in the happening of the accident. Additionally, claimant has failed to establish that defendant was put on notice of a malfunctioning light or that defendant failed to take reasonable steps in maintaining the lights (Thompson v City of New York, 78 NY2d 682 [1991]).
Claimant has also failed to establish there was a significant reconstruction of the roadway that would require the State to bring the roadway into compliance with modern design standards (Trautman v State of New York, 179 AD2d 635 [1992], Fan Guan v State of New York, 55 AD3d 782 [2d Dept 2008]). The evidence established that the purpose of the 3R project was to repair and resurface the existing roadway and improve safety. Further, the evidence showed that the work was all done within the existing blueprint of the road. Thus, the Court finds that the 3R project did not require that all aspects of the roadway be brought up to current standards as it did not constitute a significant reconstruction project.
Even assuming the project could be viewed as a significant reconstruction project, there was no showing that the State's planning decisions were either evolved without adequate study or lacked a reasonable basis (Friedman v State of New York, 67 NY2d 271 [1986]). Claimant has failed to establish that defendant did not conduct an adequate study of the intersection and that the modifications defendant adopted lacked a reasonable basis. The evidence established that the study of the corridor intersections included field visits, traffic counts, peak turning counts, level of service analysis and an analysis of the 39-month prior accident history. The evidence established that as the accident data was not significant and the intersection had a good level of service there was no need to perform a left turn delay analysis for the Gnarled Hollow Road intersection.
Claimant also failed to establish through expert testimony that a left turn arrow at the intersection was necessary to remedy a dangerous condition. The evidence established that because the corridor had a significant amount of wet pavement accidents, the roadway was being resurfaced to improve skid resistance. In addition, the evidence established that because the accident analysis revealed a high number of rear-end accidents, a left turning lane was added to remove left turning vehicles from through traffic. There was no pattern of left turn accidents or evidence of prior accidents of a similar nature that were caused by the same or similar contributing factors. Claimant's expert relied on projected data to reach his conclusions that there are more conflicts at the Gnarled Hollow Road intersection as compared to other intersections. On cross-examination, when Mr. Bellizzi was presented with the existing data, he conceded that the Gnarled Hollow Road intersection had the least amount of conflicts as compared to the other intersections in the project. He also conceded that Gnarled Hollow Road had a better level of service and fewer delays than the other intersection that received a protective/permissive left turn signal. Claimant's expert then opined that the Gnarled Hollow Road intersection could withstand the increased level of delay associated with installation of a left turning arrow phase. Defendant's experts both testified that a protective/permissive left turn signal was not warranted based upon the accident data, the level of service information and the delay analysis. In addition they testified that the State does not base a decision to install a protective/permissive left turn arrow at an intersection on whether such installation would fail to impact delay. The decision to install a protective/permissive is based upon accident data and capacity analysis. Although a left turn may be desirable and may not adversely impact the other traffic movements, those considerations do not dictate whether or not a left turn signal is warranted. Defendant's experts testified that the roadway's accident history is reviewed to determine if there is any pattern of accidents that can be ameliorated by making traffic signal modifications. If there is no pattern of accidents, the traffic signals are designed the same as they were with no modifications. Something more than a mere choice between conflicting opinions of experts is required before the State may be charged with a failure to discharge its duty to safely plan its highways (Friedman at 284). To meet this burden, claimant must evince something more than a mere choice between conflicting opinions of experts (Weiss at 588). Claimant has failed to establish through proof of prior accidents, failure to conform to accepted engineering practices or any other evidence, that defendant breached its duty to the traveling public.
Therefore, based upon the foregoing, the Court finds that claimant has failed to prove, by a preponderance of the credible evidence, its claim against defendant in this action and the claim is hereby dismissed. Any motions not otherwise disposed of are hereby denied.
The Clerk of the Court is directed to enter judgment accordingly.
April 12, 2012
Hauppauge, New York
Gina M. Lopez-Summa
Judge of the Court of Claims