Linda M. Brown,, Respondent,v.State of New York, Appellant.

Brief

N.Y.May 1, 2018

APL-2016-00226, APL-2016-00227 To be Argued by: Appellate Division Docket No. CA 15-01913 MICHAEL STEINBERG Court of Claims Nos. 108961, 110037 (Time Requested: 15 Minutes) State of New York Court of Appeals LINDA M. BROWN, Claimant-Respondent, – against – THE STATE OF NEW YORK, Defendant-Appellant. ____________________________________________ LINDA M. BROWN, as Administratrix of the Estate of WAYNE BROWN, Claimant-Respondent, – against – THE STATE OF NEW YORK, Defendant-Appellant. BRIEF FOR CLAIMANT-RESPONDENT MICHAEL STEINBERG, ESQ. 109 Rutgers Street Rochester, New York 14607 (585) 295-8544 Of Counsel to: NORMAN ANDREW PALMIERE, ESQ. Attorney for Claimant-Respondent Linda M. Brown, as Administrator The Chapin Building – Suite 300 205 St. Paul Street Rochester, New York 14604 Tel.: (585) 232-6144 Fax: (585) 232-5215 Of Counsel to: ANTHONY J. LADUCA, ESQ. Attorney for Claimant-Respondent Linda M. Brown 125 State Street, Suite 400 Rochester, New York 14614 Tel.: (585) 454-1000 Fax: (585) 327-5050 Dated: August 25, 2017 Table of contents. Table of authorities....................................................................................................ii Questions presented.................................................................................................vi Preliminary statement................................................................................................1 Counterstatement of the case.....................................................................................5 Summary of the claimant’s argument......................................................................13 Point One. The Appellate Division majority in 2010 was correct in holding that the State was liable for harm proximately caused by the unsafe character of the intersection because it had notice of the danger and did nothing to address it.......15 Point Two. There is no basis in law or sound public policy to require the claimant to prove that a properly-conducted study would have led to the placement of a four-way stop by the date of the accident...............................................................22 Point Three. There is no basis in law or sound policy to require the claimant to show how the intersection could have been made reasonably safe........................34 Point Four. The affirmed finding that Mr. Friend was not negligent should not be disturbed as it is supported by a fair interpretation of the evidence.......................42 Conclusion...............................................................................................................53 Certification pursuant to 22 NYCRR § 500.13 (c) (1)............................................54 Table of authorities. Alexander v Eldred, 63 NY2d 460 [1984]..............................................................38 Alpert v 28 William St. Corp., 63 NY2d 557 [1984]..............................................43 Ando v Woodbury, 8 NY2d 165 [1960]..................................................................50 Annino v City of Utica, 276 NY 192 [1937]...........................................................17 Applebee v State of New York, 302 NY 502 [1955]..............................................32 Applewhite v Accuhealth, Inc., 21 NY3d 420 [2013]............................................15 Atkinson v County of Oneida, 59 NY2d 840 [1983]..............................................41 Augustine v Village of Interlaken, 68 AD2d 705 [4th Dept 1979].........................49 Brooks v New York State Thruway Auth., 73 AD2d 767 [3d Dept 1979], affd 51 NY2d 892 [1980].....................................................................................................18 Brown v State of New York, 144 AD3d 1535 [4th Dept 2016]....................7, 51, 52 Brown v State of New York, 79 AD3d 1579 [4th Dept 2010] .............................................................................................2, 4, 6, 19, 23, 28, 33, 36 Cohen v Hallmark Cards, 45 NY2d 493 [1978].....................................................43 Crowe v Hanley, 123 AD3d 755 [2d Dept 2014]....................................................51 Cummins v County of Onondaga, 198 AD2d 875 [4th Dept 1993].......................17 Ernest v Red Creek Central School District [1999]....................................16, 33, 37 Friedman v State of New York, 67 NY2d 271 [1986]..........................16, 17, 18, 43 - ii - Gilberg v Barbieri, 53 NY2d 285 [1981]..........................................................49, 50 Hicks v State of New York, 4 NY2d 1 [1958]........................................................31 Humphrey v State of New York, 90 AD2d 901 [3d Dept 1982], affd 60 NY2d 742 [1983]......................................................................................................................33 Klein v New York State Thruway Auth., 220 AD2d 486 [2d Dept 1995]..............17 Lilaj v Ferentinos, 126 AD3d 947 [2d Dept 2015].................................................51 Lohraseb v Miranda, 46 AD3d 1266 [3d Dept 2007].............................................52 Mazella v Beals, 27 NY3d 694 [2016]....................................................................43 Palsgraf v Long Island R.R., 248 NY 339 [1928]...................................................21 Posman v State of New York, 117 AD2d 915 [3d Dept 1986]...............................40 Protzman v State of New York, 80 AD2d 719 [4th Dept 1981], affd 56 NY2d 821 [1982]......................................................................................................................18 Ramirez v State of New York, 143 AD3d 880 [2d Dept 2016]..............................17 Rockenstire v City of New York, 135 AD3d 1131 [3d Dept 2016]..................17, 18 Rockman v Brosnan, 280 AD2d 591 [2d Dept 2001].............................................52 S. T. Grand, Inc. v City of New York, 32 NY2d 300 [1973]..................................48 Schindler v Royal Ins. Co., 258 NY 310 [1932].....................................................48 Schneemaker v State of New York, 125 AD2d 964 [4th Dept 1986].....................39 Schneemaker v State of New York, 70 NY2d 985 [1988]......................................39 - iii - Sheehan v City of New York, 40 NY2d 496 [1976]...............................................31 Smart v Wozniak, 58 AD2d 993 [4th Dept 1977]...................................................44 Stuart-Bullock v State of New York, 38 AD2d 626 [3d Dept 1971], affd 33 NY2d 418 [1974]...............................................................................................................32 Tomassi v Union, 46 NY2d 91 [1978]....................................................................31 Turturro v City of New York, 28 NY3d 469 [2016].............................16, 24, 39, 43 Weiss v Fote, 7 NY2d 579 [1960]...............................1, 5, 14, 16, 17, 23, 24, 25, 29 Wittorf v City of New York, 23 NY3d 473 [2014].................................................16 Ziecker v Town of Orchard Park, 75 NY2d 761 [1989].........................................43 NY Const., Art. VI...................................................................................................42 CPLR 5501..............................................................................................................42 Vehicle and Traffic Law § 155..........................................................................49, 50 Pattern Jury Instructions....................................................................................17, 33 Restatement, Judgments 2d [Tent Draft No. 4].......................................................49 - iv - Gilovich, Vallone, and Tversky, “The Hot Hand in Basketball: On the Misperception of Random Sequences,” Cognitive Psychology, 17, 295-314 (1985) .................................................................................................................................30 Karger, Powers of the New York Court of Appeals [rev 3d ed]..............................43 Prince, Richardson on Evidence..............................................................................48 - v - Questions presented. 1. Did the Appellate Division rule correctly in 2010 that the State’s negligence was made out by proof of the dangerous character of the intersection, notice to the State of that danger, and the State’s failure to act with respect to the danger? 2. When the State did not conduct a study or take any action after having been notified of a danger, was the claimant required to prove what changes would have been recommended by a study and that appropriate changes would have been in place at a time when they would have averted the accident? 3. Was there legally sufficient evidence to support the affirmed finding that Henry Friend was not negligent? - vi - Preliminary statement. It is uncontested that the State had notice years before the incident that there had been numerous right-angle collisions at this intersection, that it commenced but almost immediately abandoned its study of the problem, and that the claimant was injured and her husband killed in a right-angle accident that could best be explained by a sightline problem which accounts for the earlier accidents as well. In the light of those facts the Fourth Department held that the intersection was not reasonably safe and that the claimant could recover if her losses were proximately caused by the danger which the State knew of but had negligently permitted to exist. The State concedes negligence, but not the negligence which the lower courts found. It papers over that real negligence with a “negligence” unrecognized in law. It minimizes the fact that it permitted a known danger to exist and admits only a failure to conduct a study, and it argues that the claimant must show that she was injured by that failure. This is said to require her to show how a study would have proceeded, what changes it would have recommended, and when those changes would have occurred. This is a novel and literally unprecedented argument which misinterprets Weiss v Fote and runs contrary to long-standing case law and to the State’s duty to make its highways reasonably safe. This brief will demonstrate its flaws. What must be pointed out as a preliminary matter is how deeply this position is woven into the State’s discussion, so much so that it gives a misleading picture of the proceedings below and the holdings at issue. The brief asserts, for example, that “[t]he Court of Claims and the Fourth Department seemingly agreed that the State’s negligence was its failure to complete the intersection study and take corrective action” (Brief, 25). But this is not what the Appellate Division found at all: Here, based upon that evidence, we conclude the court properly determined with respect to defendant’s negligence that claimant established that defendant had notice of the dangerous condition of the intersection and failed to take remedial action. That determination correctly resolved in claimant’s favor defendant’s failure to maintain the highway and the intersection in a “reasonably safe” condition (Brown v State of New York, 79 AD3d 1579, 1583-1584 [4th Dept 2010], emphasis added). This is nothing like the position which the brief attributes to the court. The negligence of the State did not lie in its abandoning its study. It lay in its inaction in the face of a known hazard which was within its power to eliminate. As the Appellate Divsion recognized, once the State is notified that a section of its highways is dangerous it is required to make that section reasonably safe within a reasonable time. A failure to do so is one of the archetypal forms of negligence. The brief also supposes that the Fourth Department holding renders it an insurer of motorists’ safety and posits “negligence in the air” (Brief, 40). It does 2 neither. It simply makes the State liable on ordinary rules of negligence to foreseeable plaintiffs—namely, those who make use of the State’s highways. The other branch of the State’s brief rests on an equally untenable reading on the record. As both the Court of Claims and the Appellate Division recognized, the danger here was that drivers who had stopped on a side road were sometimes unable to see northbound vehicles on the main road that they were about to cross. This sightline problem, caused by an almost imperceptible rise and fall in the road —a “vertical curve”—explained the intersection’s history of right-angle accidents. The State, though, insists that the other driver here would have been able to see the claimant and her husband on their motorcycle in the exercise of reasonable care. For this position it relies on the very testimony which both lower courts understood as proof that he would not have been able to see them. Proof that only a third of a vehicle would have been visible at a distance of close to a thousand feet is recast as proof that the vehicle must have been visible because a third of it was not obscured. The State’s argument, then, comes down to an unacknowledged theory that the intersection here was not dangerous after all. Whether or not it was dangerous is a fact question, however, and both the Appellate Division and the Court of Claims resolved it identically. All of the State’s brief must be read with caution. The same misreading of the record and misapplication of the law appears in the “Questions Presented.” 3 The first of these, for example, assumes that the negligence in question was its “failure to complete [the] intersection study and take corrective action” and that the claimant had to show that a four-way stop would have been in place on the date of the accident (Brief, 5-6). In other words, it asks if the claimant had met the burden which the State’s novel theory would impose on her. It cannot be answered on its own terms without conceding that this theory is the correct one. The second “Question Presented” reads: Did the Fourth Department err as a matter of law in 2010 when it held that to establish proximate cause, claimant needed to prove only that the existence of a dangerous condition, rather than the State’s negligence, contributed to the accident? (Brief, 6) But this is not what the Appellate Division held. As has already been shown, it found the State liable in negligence (assuming a finding of proximate cause) for its failure to remedy a known danger. By tolerating that danger the State, in effect, owned it and its foreseeable consequences. It is simply disingenuous to claim that this amounts to liability without negligence. The third of the State’s questions asserts if it does not assume that a northbound motorcycle behind the vertical curve could be observed with the exercise of reasonable care. In fact, the courts below took just the opposite conclusion from the testimony of Mr. Parrone, who saw the vertical curve as a key to explaining both the accident history and the Brown-Friend accident (R. 646; 79 AD3d at 1584). Not only does the State take proof that oncoming vehicles could 4 not be observed and cite it in support of a contradictory claim, it tells the Court that there is no evidence that the vertical curve caused any sightline problems. The State is free to argue as it chooses, although in this context it is limited to a legal sufficiency claim, but it misrepresents the evidence at trial when it claims that it supports only this conclusion (Brief, 6). Counterstatement of the case. Since this Court has limited factual review powers, and because the facts found by the Court of Claims were affirmed by the Appellate Division, present counsel will rely on the 2010 order of the Appellate Division: There are certain undisputed facts that guide our analysis. First, defendant abandoned any study that had been undertaken with respect to the conditions of the intersection and the speed limit for vehicles approaching the intersection while traveling on Route 350. Second, no study or plan was underway at the time of the accident. Third, defendant did not present any evidence at trial establishing that the design and signage of the intersection on the date of the accident was the product of any prior study or plan. … Defendant therefore correctly concedes that it is not entitled to governmental immunity pursuant to Weiss v Fote. ... Claimant established at trial that, prior to the accident in April 2003, the Department of Transportation (DOT) received accident history data from the State Accident Surveillance System, which indicated that at least 17 right-angle accidents involving failure to yield the right-of- way as a contributing factor occurred at the intersection between August 1996 and June 2002. In six of those accidents, the drivers reported that they stopped on Paddy Lane but did not see the oncoming vehicles on Route 350 before the accident. ... Claimant’s traffic engineering expert 5 testified that a vertical curve in Route 350 south of the intersection, combined with the speed limit on Route 350 of 55 miles per hour, were relevant factors in the right-angle accident pattern and that the dangerous condition of the intersection and the pattern of accidents could have been remedied by the installation of four-way stop signs. … Defendant offered no evidence that the intersection was “reasonably safe” as configured or that it complied with any highway engineering standards at the time it was built or at the time of the accident. ... … The evidence amply demonstrated that defendant’s design of the intersection with two-way stop signs had proven inadequate in light of the accident history. ... … [W]e conclude the court properly determined with respect to defendant’s negligence that claimant established that defendant had notice of the dangerous condition of the intersection and failed to take remedial action. That determination correctly resolved in claimant’s favor defendant’s failure to maintain the highway and the intersection in a "reasonably safe" condition. Thus, we agree with claimant that the remaining issue to be determined was whether the dangerous condition of the intersection was a proximate cause of the accident (Brown v State of New York, supra, 79 AD3d at 1581-1584, citations omitted, emphases added). As the emphasized portions show, these were findings by the trial court which were affirmed by the Appellate Division. Although the State claims that the Appellate Division modification in 2010 involved reviewable differences as to the facts (Brief, 31-32), in reality it did not arise out of any difference between the two courts on what had happened. Instead, it concerned the claimant’s burden—what she needed to show to establish liability. This is a pure question of law. The Court of Claims had initially held that the facts made out at trial did not establish liability because they did not show that a four- way stop would have been in place in time to stop this accident. The Appellate 6 Division held that this additional showing was unnecessary and thus that the identical facts did show that the State was liable. The courts applied different legal theories to the same facts. The State raises no direct question about any of the above facts, but it does make a sufficiency argument regarding proximate cause and the conduct of Henry Friend. These questions were decided by the Court of Claims on remittitur, and the Fourth Department affirmed its results, citing the following factual findings: Although defendant correctly contends that “drivers have a ‘duty to see that which through the proper use of [their] senses [they] should have seen’” there is evidence from which the court could fairly conclude that Friend would not have been able to observe the motorcycle in time to avoid the collision, including evidence concerning the history of right- angle accidents “caused by the same or similar contributing factors as the accident in which claimant was involved”. Contrary to defendant’s contention, the evidence of prior similar accidents was properly considered in determining causation. Inasmuch as the court’s determination is supported by a fair interpretation of the evidence, we decline to disturb that determination (Brown v State of New York, 144 AD3d 1535, 1538-1539 [4th Dept 2016], citations omitted). These findings, then, are also reviewable for legal sufficiency only. In light of the unanimous factual findings of the two lower courts there is little to be gained by an overview of the testimony. Certain aspects of the State’s statement of facts demand comment, however. It consistently raises imputations about Mr. Friend’s conduct, starting with the phrase, “Henry Friend’s pickup truck collided with a motorcycle” (Brief, 6). This echoes some of Judge Midey’s 7 language (R. 643) but is still misleading; it implies that his vehicle struck the motorcycle.1 It was the other way around, however. It was the Brown’s motorcycle that struck Mr. Friend’s truck as he was driving slowly through the intersection after stopping and looking both ways. Although no issue truly arises from the aborted study or the testimony about “incremental measures,” the State devotes several pages to these topics. It is worth noting that the State paints the facts in the rosiest of hues when it refers to “DOT’s incomplete study” (Brief, 9, 11). Judge Midey found that there had been no activity after a June, 1999, letter to the Town of Ontario, which had brought the problem to the DOT’s attention, and that “the intersection study simply had been abandoned” (R. 649). “Incomplete” suggests something ongoing, but in fact nothing was going on. The DOT had requested data and a survey but nobody ever considered the results. The discussion of incremental measures may seem more justified, since an fair amount of time was taken up at trial in walking through possible remedial measures for this intersection short of installing a four-way stop. It is irrelevant nonetheless; as the Fourth Department held, since the State knew of the danger 1 That, after all, is the common meaning of the verb “to collide”: “to hit something or each other with strong force: to crash together or to crash into something” (http://www.merriam-webster.com/dictionary/collide). 8 and chose to leave it uncorrected it was liable for the foreseeable consequences no matter what it might have done in the absence of negligence. Moreover, none of the the incremental steps would have been reasonable responses to the problem. They were all patently inadequate. This was even brought out by the testimony of the State’s own employee, Larry Sherman. As he acknowledged, there was a pattern of right-angle accidents at this intersection after vehicles on Paddy Lane had come to a stop (R. 205). Sherman admittedly testified that the intersection did not bear such heavy traffic volumes as to justify a four-way stop; he said, “four-way stops are used when pretty much you’ve exhausted your other types of traffic control improvements” (R. 164). However, he was never able to explain how any “other types of traffic control improvements” would have made any difference. Since motorists were already stopping there was no reason to double up on signs, add flashers, or make other incremental signage changes: You know, you want people to come to stop. Once they come to a stop, ... how many signs behind them really isn’t what they’re thinking about. … [W]hether you had a 48-inch stop ahead sign or a 30-inch stop ahead sign doesn’t impact what a person does once they come up and make the stop (R. 231). … There was a pattern of right angle accidents. The pattern involved ... principally people coming to the stop on the side road and then entering the intersection. So, you know, regarding the stop sign and the stop ahead sign, ... essentially, you’ve achieved your goal. You have traffic coming to a stop. … There was a warning sign on the approach for people on 350. You know, warning signs have some value, 9 particularly for people who are not familiar with this section of highway, and for people who drive it every day, basically they’re not looking at those signs (R. 232-233). There was no rational basis for changing the signage, then, and since there were no problems with overgrown brush or other overt sight line obstructions the “incremental step” of trimming foliage (Brief, 9) would have been equally pointless. Mr. Parrone, the claimant’s expert, testified consistently that the only change that would make this intersection safe was a four-way stop. He did discuss the incremental approach in his expert disclosure and he was cross-examined on that disclosure at trial, describing what the State would likely have done if it had taken the incremental approach (R. 299-303). His ultimate position did not waver, however; on redirect he said, “Based on all of the traffic injuries … I still will say that they needed to put a [four-way] stop sign there” (R. 304). The brief also cites Parrone’s testimony that a four-way stop could be used as a temporary measure (Brief, 14), but the context of that testimony is illuminating: Q. … I would like you to assume that DOT took some form of action in 1999 to reduce the pattern of accidents, but decided to leave the study open … and wanted to appropriately monitor the study after taking initial action. … – what action normally is taken when a study is continued? A. … [T]he DOT certainly, if they were going to make this a long- term investigation, to contact the town … and give them a time line in 10 which they could conclude. Additionally, they could have also initiated some temporary measures, whether it be the stop sign in a four-way area – a four-way manner, for a period of time, whether it be six months or three months, to determine if there was a reduction in accidents (R. 277- 278). If anything can be drawn from this exchange it is that Mr. Parrone saw no way of making this intersection any safer short of a four-way stop. This is the only temporary measure he suggested; he was suggesting that the State monitor the accident rate after a four-way stop was installed, not after installing additional warning signs or flashers. This was consistent with the rest of his testimony and the implications of Mr. Sherman’s testimony as well. One more point may be made about the State’s statement of facts. Although there are affirmed findings of fact that this was not a reasonably safe intersection, in large part thanks to the vertical curve, the State continues to argue that it was reasonably safe because “drivers stopped at the intersection looking south on Route 350 could see oncoming traffic despite the [vertical] curve” (Brief, 16). They draw this conclusion from Mr. Parrone’s testimony: “In his opinion, the average driver on Paddy Lane stopped at the intersection could see the upper third of an approaching northbound vehicle from 897 feet away” (Id.). This is yet another conclusion disguised as a fact, and it turns Mr. Parrone’s testimony on its head. Being able to see only the top third of a vehicle at a distance of nearly 1000 feet was “a relevant factor in the assessment of the pattern of 11 accidents”, he said, because “the motorist looking south from the intersection of Paddy Lane has a shorter time period in which to view vehicles because he doesn’t have an opportunity to see – or to view that vehicle in totality until there’s only 550 feet, and we’re dealing with a speed limit of 55 miles an hour” (R. 274-275). In his view, seeing the top third of a vehicle at that distance is tantamount to being unable to see anything at all. This inversion of relevant and credible testimony reads the vertical curve out of the case entirely, which makes it possible for the State to claim that “the only evidence it [the Appellate Division] cited to support that proposition [i.e., that Friend would not have been able to observe the motorcycle in time] was the history of prior accidents at the intersection” (Brief, 24). Yet the proximate cause case was argued on the basis of the vertical curve and its sight limitations, as this portion of the claimant’s papers shows: Both the vertical curve and the 55 mile-per-hour speed limit made this intersection an unacceptably dangerous one, and the testimony of Mr. Friend is exactly what one would expect to hear when the poor sight lines and high road speed caused this kind of accident. Furthermore, these dangers explain Mr. Friend’s own conduct. His account is far from being incredible as a matter of law or even self-serving; he was a victim of the poor intersection design, too, though he was much more fortunate than the Browns were. Drivers are supposed to see what there is to be seen, of course, and Mr. Friend did see what there was to be seen. Due to the vertical curve, though, there was little he could see when he looked for northbound oncoming traffic. By a tragic coincidence, repeated too many times at this intersection, the Browns’ northbound vehicle was in the wrong place at the wrong time and was concealed from drivers like Mr. Friend (R. 697). 12 The Court of Claims, too, gave significant weight to the vertical curve; Judge Midey wrote that “the sight restrictions created by the vertical curve … when combined with the 55 miles per hour speed limit … prevented Mr. Friend from observing Mr. Brown and claimant as they approached the intersection” (R. 734). The Fourth Department did not need to cite all the proof that supported the judgment it affirmed and there is no reason to think that this factor was absent from its consideration. The remaining factual issues will be discussed in the relevant contexts. Summary of the claimant’s argument The proof at trial showed that the intersection here had a concealed danger: a gradual rise and fall of the highway to the south that reduced sight distances by obscuring as much as two-thirds of an oncoming vehicle. The State had been given notice of an unusually high number of accidents at this intersection, a substantial number of them with similar characteristics: motorists stopped on the side road entered the intersection and struck or were struck by northbound vehicles which they had not observed. The “vertical curve” explained this pattern. The State, however, did nothing after receipt of the notice except start and almost immediately abandon a study. 13 The record supports all these affirmed facts, which establish negligence on the part of the State under ordinary principles of negligence. By allowing a known danger to persist for an unreasonable length of time after it had notice of the danger the State was liable for its reasonably foreseeable consequences. It was not necessary for the claimant to show what a study would have produced in the way of remedial measures or when the State would have made changes that would have prevented the accident. The State’s novel theory converts the immunity rule in Weiss v Fote into a standard of care and allows it to evade liability for inaction unless the claimant could establish that it would have made the intersection safe—the very thing which it is required to do. It implies that the fact that a highway is known not to be reasonably safe for motorists should not subject it to liability unless the claimant can prove “that there was a remedial action that reasonable care required the State to take and that it failed to take” (Brief, 38). But the public highways are required to be reasonably safe, and if they are not safe for motorists the State is required to remedy the danger. Claimants can rely on the State’s duty here. The record also supports the affirmed finding that the other motorist, Henry Friend, was unable to see the oncoming vehicle in the exercise of reasonable care. The trial court accepted his testimony that he looked at appropriate times and saw nothing, and that account was consistent with the effects of the vertical curve and 14 the accident history at the intersection. The State’s legal sufficiency argument must be rejected. Point One. The Appellate Division majority in 2010 was correct in holding that the State was liable for harm proximately caused by the unsafe character of the intersection because it had notice of the danger and did nothing to address it. The State’s elaborate arguments deserve a detailed response, but there is a danger that any such response will get bogged down in minutiae. It is all too easy to focus on the twists and turns of the State’s theories and lose sight of the straightforward principles that actually apply in cases like this one. For this reason the claimant will set out the law as she understands it and how it supports the results below. The discussion of the State’s negligence theories will be found in the second and third points on appeal and the possible role of Mr. Friend will be addressed in the fourth. It is uncontested that the State’s liability must be decided on ordinary negligence principles. While “the first issue for a court to decide is whether the municipal entity was engaged in a proprietary function or acted in a governmental capacity at the time the claim arose” (Applewhite v Accuhealth, Inc., 21 NY3d 420, 425 [2013]), there is no doubt that 15 [h]ighway planning, design, and maintenance ... are proprietary functions, arising from a municipality’s “proprietary duty to keep its roads and highways in a reasonably safe condition” (Turturro v City of New York, 28 NY3d 469, 479 [2016], quoting Wittorf v City of New York, 23 NY3d 473, 480 [2014] and citing Friedman v State of New York, 67 NY2d 271, 283 [1986]). In this case, as in other highway design and maintenance cases, “the municipality ‘is subject to suit under the ordinary rules of negligence applicable to nongovernmental parties’” (Id., quoting Wittorf v City of New York, supra, 23 NY3d at 479). Separate and apart from negligence questions is the question of governmental immunity. “In the specific proprietary field of roadway safety, a municipality is afforded ‘a qualified immunity from liability arising out of a highway planning decision’” (Id., quoting Friedman v State of New York, 67 NY2d at 283). This is the rule first set out explicitly in Weiss v Fote (7 NY2d 579 [1960]). But this “immunity arises only ‘“where a duly authorized public planning body has entertained and passed on the very same question of risk as would ordinarily go to the jury”’” (Turturro v City of New York, supra, 28 NY3d at 480, quoting Ernest v Red Creek Central School District, 93 NY2d 664, 673 [1999], rearg denied 93 NY2d 1042 [1999], quoting Weiss v Fote, 7 NY2d 579, 588 [1960], rearg denied 8 NY2d 934 [1960], emphasis in original). “Accordingly, where the decision made by the municipality or governmental body was not the product of a governmental plan or study, the doctrine of qualified immunity is 16 inapplicable” (Ramirez v State of New York, 143 AD3d 880, 881-882 [2d Dept 2016], citing Klein v New York State Thruway Auth., 220 AD2d 486 [2d Dept 1995]; Cummins v County of Onondaga, 198 AD2d 875 [4th Dept 1993]). As the State concedes, it does not apply here. Ordinary negligence rules apply. Given the affirmed findings of fact in this case the result reached by the Appellate Division majority in 2010 should not be overturned. The applicable negligence standard is set out succinctly in the Pattern Jury Instructions: In order to find that CD was negligent, you must find that (1) CD knew of the unsafe condition long enough before AB’s injury to have permitted CD in the use of reasonable care to have it corrected, or to take other suitable precautions, or to give adequate warning, and it did not do so (PJI 2:225). The basis for this standard is straightforward: It has long been held that a municipality “‘owe[s] to the public the absolute duty of keeping its streets in a reasonably safe condition’” (Friedman v State of New York, supra, 67 NY2d at 283, quoting Weiss v Fote, supra, 7 NY2d at 584, quoting Annino v City of Utica, 276 NY 192, 196 [1937]; see also, Rockenstire v City of New York, 135 AD3d 1131, 1132 [3d Dept 2016]). Action pursuant to this nondelegable duty is triggered by notice of a dangerous condition, either actual or constructive: [S]everal Appellate Division decisions have held that when the State is made aware of a dangerous highway condition and does not take action to remedy it, the State can be held liable for resulting injuries. This conclusion flows logically from the premise that the State has a nondelegable duty to maintain its roads in a reasonably safe condition 17 (Friedman v City of New York, supra, 67 NY2d at 286, citations omitted). Although the State here toys with the phrase “can be held liable” (Brief, 43), it offers no criterion to distinguish an actionable failure to respond to notice of a dangerous condition and a failure whose consequences must be borne by the innocent victims, and in truth there is no such criterion. In this kind of case “can” means “shall.” The claimant thus had the burden “of proving that the State neglected its duty to properly maintain the shoulder of the highway or that it had notice and permitted a dangerous condition to exist” (Protzman v State of New York, 80 AD2d 719 [4th Dept 1981], affd 56 NY2d 821 [1982]). That, of course, is what the proof here showed. It is an affirmed finding of fact, supported by legally sufficient evidence, that this intersection was dangerous. While the State takes issue with the specific number of right-angle accidents found in the record, it is clear that these were frequent and serious enough for the local municipality to call the problem to the attention of the State. In this case, as in Rockenstire v State of New York, “this evidence was sufficient to establish defendant’s actual notice of a hazardous condition on the roadway, thus triggering a duty ‘to take reasonable measures to correct the condition’” (135 AD3d, supra, at 1133, quoting Brooks v New York 18 State Thruway Auth., 73 AD2d 767, 768 [3d Dept 1979], affd 51 NY2d 892 [1980] and citing Brown v State of New York, supra, 79 AD3d at 1582). The State was given notice of this danger in 1999. It did nothing to correct the danger at any time before this accident in 2003. Clearly, then, it had notice of a dangerous condition and had more than enough time to find and effect a remedy. Instead, it permitted this known danger to exist and thus subjected the motoring public to an unreasonable and unnecessary risk of harm. It breached its duty “to take reasonable measures to correct the condition”, and of course a duty towards others and a breach of that duty make up the very essence of negligence. This negligent failure to address an unsafe condition on a public highway makes the State liable for harm proximately caused by that condition.2 The State’s own theory—briefly, that the claimant had to show that if it had acted pursuant to a study it would have rendered the intersection reasonably safe by the date of the accident—will be discussed below. A point or two may be made, however, about a few of the State’s specific attacks on the theory set forth here. 2 The Appellate Division majority spoke at times of the ongoing duty to review a prior highway plan; see 79 AD3d at 1584. There was no evidence of any plan, however, and other portions of the decision proceeded on ordinary negligence principles: “The appropriate inquiry was whether defendant was made aware of a dangerous condition and failed to take action to remedy it and whether the dangerous condition was the proximate cause of the accident” (Id., at 1582). 19 The brief argues, “To the extent that the majority assumed that the absence of a four-way stop sign was part of a dangerous condition, it relieved claimant of her burden to prove that its absence prior to April 2003 really was unreasonable” (Brief, 40). This is simply false. There is no doubt that the absence of a four-way stop was one of the conditions that made this intersection dangerous, but what “really was unreasonable” was not the absence of a four-way stop. It was the existence of an intersection which the State knew was not reasonably safe and the four years in which it did nothing at all about it. This was a violation of its duty to the public. The claimant had the burden of proving those facts, and she met her burden easily. The Appellate Division did not relieve her of any legal or evidentiary burden. The brief also asserts, “To find that the State was responsible for any dangerous condition that caused an accident, regardless of the State’s negligence, transforms the State into ‘an insurer of the safety of its roadways’” (Brief, 42). The claimant is not arguing that State is responsible for any and all dangerous conditions, however. The State is liable when it does nothing with respect to those highway dangers of which it has notice. This argument sounds in negligence. The difference between insurance liability and negligence liability is that negligence liability depends on duty and notice. Both are found in the present case. 20 Finally, the brief claims that the Appellate Division “majority allows claimants to prevail by asserting that the State should have taken remedial action, without specifying what reasonable care required. This amounts to an endorsement of ‘negligence in the air’—a theory which this Court has rejected for nearly a century. Palsgraf v. Long Island R.R., 248 N.Y. 339, 341 (1928)” (Brief, 39-40). This is a misinterpretation of the case and a misinterpretation of Palsgraf. “Negligence in the air” is not negligence without a specification of possible remedial measures but liability without “the invasion of a legally protected interest, the violation of a right” (248 NY at 341). Those who use the public highways have a “legally protected interest” to be free of unreasonable dangers, which is why the State has an absolute, nondelegable duty to maintain its highways in a reasonably safe condition and why those who are injured when the State breaches that duty have a remedy in negligence. Nor does the claimant have to show “what reasonable care required”. What reasonable care required is beyond dispute. The public highways must be reasonably safe, and when the State finds out that they are not safe the State must make them so. As point three, below, will demonstrate, the claimant was not required to prove how the State should have gone about doing that.3 3 Installing a four-way stop was not the State’s only option, so long as it did something which made the intersection safe. Reducing the speed limit and installing speed bumps, for example, might have been equally effective. 21 As the cases above establish, liability for an unsafe highway condition is made out by showing notice of that condition, a failure to correct it within a reasonable time, and damages as a result. These were made out by the affirmed findings of fact. The Appellate Division majority applied the proper rules of law to the affirmed facts in sending the case back to the Court of Claims on proximate cause issues only. The fourth point on appeal will show that the proximate cause finding was also supported by affirmed findings of fact. Point Two. There is no basis in law or sound public policy to require the claimant to prove that a properly-conducted study would have led to the placement of a four-way stop by the date of the accident. As the claimant has argued, the State was not made liable here for the dangerous condition of the intersection per se. It was liable because it exposed the motoring public to that known danger for an unreasonable length of time. Its negligence consisted in its failure to act when action was required. That is not how the State sees it, however. It argues that the claimant needed to show that if the State had not been negligent in its abandonment of the study a four-way stop sign or other signal would have been in place by the time of the accident. It agrees with the 2010 dissent; in its view the claimant “was required to 22 show what corrective action should have been taken by defendant and that such corrective action would have been completed before and would have prevented the accident” (Brown v State of New York, supra, 79 AD3d at 1586). Although the brief pays lip service to the rule that ordinary negligence principles control here, its argument, like that of the 2010 dissenters, crafts a new set of negligence principles applicable to governmental entities alone which is fatally inconsistent with the State’s absolute duty to maintain its highways in a reasonably safe condition. It is also at odds with the general rule that a defendant is liable for the foreseeable consequences of a known dangerous condition which it did not remedy within a reasonable time. It requires the claimant to mount a speculative reconstruction of the process the State should have engaged in. In insisting that the State would have taken incremental steps and revised them in the light of the factual history of accidents at the intersection, moreover, the State makes what was reasonable in 1999 depend on what happened or might have happened in 2000, 2001, and 2002. For all of these reasons the State’s theory should be rejected. The Appellate Division majority in the 2010 appeal was correct in seeing this as a reintroduction of Weiss v Fote principles, but what it may have overlooked is that it rests on a kind of category error. It converts the immunity rule of Weiss v Fote into a standard of care. The State argues that when it has notice of 23 a dangerous condition its duty is to conduct a study and do what that study commands. What would be deemed reasonable, on this theory, is whatever that study might recommend. This changes the focus of the State’s duty from an end—a reasonably safe highway—to the means. There is no warrant in existing law for this change, however, or for anything that weakens the underlying duty to the State’s motorists. Moreover, Weiss v Fote does not impose any tort duty on the State and it does not define reasonable care. In fact, it serves primarily to remove the question of reasonableness from the courts altogether. Although the immunity rule in Weiss v Fote must be distinguished from governmental immunity, it too arises from the separation of powers. As that seminal case held, To accept a jury’s verdict as to the reasonableness and safety of a plan of governmental services and prefer it over the judgment of the governmental body which originally considered and passed on the matter would be to obstruct normal governmental operations and to place in inexpert hands what the Legislature has seen fit to entrust to experts. Acceptance of this conclusion, far from effecting revival of the ancient shibboleth that “the king can do no wrong”, serves only to give expression to the important and continuing need to preserve the pattern of distribution of governmental functions prescribed by constitution and statute (Weiss v Fote, supra, 7 NY2d at 585-586). This is the key to the phrase which this Court chose to emphasize in Turturro, “the very same question”. The Legislature has placed responsibility over questions of highway safety and design with the experts employed by the executive branch, and 24 in this field, absent some further impropriety, the judicial branch will not usurp the executive branch’s functions by giving its own answers to questions which the executive had put to its experts (Weiss v Fote, supra, 7 NY2d at 588). If the executive branch has not “entertained and passed on” the question, however, the immunity rule vanishes and leaves nothing behind. The judicial branch does not overstep its limitations in considering the reasonableness of the conduct in question, and to do this it employs the same rules of negligence that apply to non-state actors. Under those principles the State’s actions here can only be interpreted as culpably negligent; it breached its duty to make its highways reasonably safe within a reasonable time after receiving notice of a danger. The State, however, wants this Court to endorse the initial holding of the Court of Claims, which is that once it has notice of a highway danger the State’s real duty is to conduct a study and do what that study recommends. It is important to note the implications of that theory, at least as they play out here. In his decisions overruled in 2010 Judge Midey held explicitly that the State would not be liable if a hypothetical study would not have recommended action sufficient to prevent the accident: Based on the testimony at trial, this Court concluded that even if a traffic study had been conducted and completed, it would not have prevented this tragic accident. While claimant believes that this Court had improperly required her to prove which mitigating action would 25 have prevented this accident, this Court in fact had merely summarized testimony as to the numerous options available which, even if implemented, would not have prevented this accident from occurring. Accordingly, … this Court finds that it must adhere to its original decision that the failure of the State to implement a safety plan for this intersection within a reasonable period of time was not a proximate cause of the accident which occurred (R. 676). In Judge Midey’s view, the State was not liable because even if it had acted with reasonable care it would have left the intersection no safer than it was before. This is exactly what the State itself argues: “In light of the evidence that the four-way stop sign would not have been installed before the April 2003 accident, it follows that if the State had acted with reasonable care in 1989 by completing its study, taking corrective action and monitoring the results, the accident would have been just as likely to occur” (Brief, 36). This dangerously weakens the standard of reasonable care. Under ordinary principles of negligence the State is required to make its highways reasonably safe. The State’s proposed rule would water down that obligation and deem certain actions reasonable even if they could not, in fact, make the highways reasonably safe. Eliminating the duty to make the highways safe allows the State to move on to a second branch of its argument. It claims that since what it would have done pursuant to a study would have been no more efficacious than doing nothing at all, it should not be liable for doing nothing. It seeks to be free of the consequences of 26 its inaction by arguing that the actions required by reasonable care would have made no difference anyway. But the absolute duty to make the highways reasonably safe cannot be abrogated, and the State does not meet it by actions that fail to alleviate known dangers. If it had carried out a study, and if that study had recommended action that failed to make this intersection reasonably safe, it is at least conceivable that it would be able to claim immunity.4 This result would not follow because its actions were presumptively reasonable, however. It would arise from the deference which courts give to the decisions of duly constituted governmental bodies. Courts will defer to a good faith study which seeks the best way of meeting the State’s duty. If it ignores that duty, though, as it did here, the State’s actions are entitled to neither immunity nor deference. The court can make its own determination of reasonableness, and the Appellate Division majority was correct in holding that it was unreasonable to ignore this known danger for this extended period of time. This was a determination of law, not a modification on the facts subject to review. It is not correct to suggest, as the State does, that “the Fourth Department found as a fact that reasonable care required the placement of a four-way stop sign at the intersection before the accident” (Brief, 31-32). The Fourth Department did 4 The State would still be liable if the study was “plainly inadequate or there [was] no reasonable basis for its [] plan” (Friedman v State of New York, supra, 67 NY2d at 284). 27 not make an engineering determination as to the proper means of rendering the intersection safe and it refused to speculate as to what the State might have done and when it might have done it. As the majority wrote in 2010, “The appropriate inquiry was whether defendant was made aware of a dangerous condition and failed to take action to remedy it and whether the dangerous condition was the proximate cause of the accident” (Brown v State of New York, supra, 79 AD3d at 1582). The first two parts of this inquiry were answered in the affirmative by the Court of Claims and that was sufficient to send the case back for a proximate cause determination. As the majority also said, “The fact that defendant failed to complete any study of the intersection belies its contention that one or more incremental steps were necessary before four-way stop signs would be installed” (Id., at 1583). In fact, the entire discussion of incremental steps is beside the point. The record here is admittedly confusing; although the claims specify that “the State of New York negligently failed to take any action to reduce the apparent dangerous nature of the intersection” (R. 34, 56), trial counsel did explore possible action short of a four- way stop. As was shown above, however, most of those steps would have been directed at encouraging drivers on Paddy Lane to stop, something which those involved in the right-angle accidents were already doing. While the claimant 28 disagrees with the legal theory that Judge Midey applied, she does endorse his finding that none of the incremental steps would have made any difference. Since the State’s absolute mandate is to make the highways reasonably safe, and since none of the incremental steps would have met that mandate, the suggestion that the State would or should have taken one or more of those steps is to suggest that the State would or should have acted unreasonably. It is only through the misapplication of Weiss v Fote that this argument achieves even a veneer of plausibility. By deeming the outcome of a non-existent study to be ipso facto reasonable, the State can claim that its inaction was no more harmful to the claimant and her late husband than reasonable action would have been. This strategy was properly rejected by the Appellate Division. Moreover, the State’s theory would require claimants to mount a trial within a trial to prove what facts would have been brought before the highways experts in a hypothetical study and what actions those experts would have recommended. These evidentiary problems are onerous enough in themselves. They would be compounded if the claimant had to establish what further steps would have been taken in light of later events, a subject which the State explores in some detail (Brief, 35-36). Even worse, this makes the reasonableness standard hostage to the vagaries of traffic and accident history. 29 The State argues, “The number of right-angle accidents dropped after 1999 without any changes to the intersection” (Brief, 35), but it would be unable to make this argument had more accidents happened in 2000 or 2001, and whether or not this occurred was strictly a matter of chance.5 The notice the State received in 1999 called for a response, and the reasonableness of its response should not depend on what might or might not happen after then. It should not be necessary to see into the future to decide what is reasonable, and the standard of reasonableness should not rest on speculation, chance, or the power to see the future. The State perhaps recognizes the novelty of this approach, for it attempts to assimilate it to well-recognized doctrines that, in fact, arise in different contexts and address different issues. It first argues that the failure to do anything about this danger was not a proximate cause of the accident because even with reasonable care the accident would have happened anyway. The cases cited in this regard are without any similarity to the one before this Court, however, because in none of them was there any indication that the highway was dangerous or that a highway danger played a part in the happening of the accident. 5 The dip was likely an example of the “clustering illusion,” which is “the tendency to erroneously consider the inevitable ‘streaks’ or ‘clusters’ arising in small samples from random distributions to be non-random” (https://en.wikipedia.org/wiki/Clustering_illusion); see Gilovich, Vallone, and Tversky, “The Hot Hand in Basketball: On the Misperception of Random Sequences,” Cognitive Psychology, 17, 295-314 (1985). 30 In Tomassi v Union, for example, this Court held that “it is clear beyond peradventure that the accident was caused by the failure of Forbidussi and Tanzini to observe the rules of the road” instead of any dangerous condition of the highway (46 NY2d 91, 98 [1978]). That case cited Hicks v State of New York, where a stop sign was not in place but, as the Court held, “the circumstances were such that the absence of a ‘stop’ sign had no bearing on the happening of the accident. … [T]he infant driver Sebring either failed to see, or saw and disregarded, an admittedly visible sign which should have made her aware, if nothing else would, that she was approaching a highway intersection” (4 NY2d 1, 7 [1958]). In Sheehan v City of New York, where a passenger sued a bus driver after the bus was struck by a sanitation truck, the Court vacated a judgment against the driver because “no act of the bus in the case before us caused the sanitation truck to be any place other than where it was” (40 NY2d 496, 530 [1976]). The brief implies that the bus driver had violated a city ordinance (Brief, 37), but this is incorrect; as the Court noted, “the bus at the time of the accident appears merely to have been at one point in the street where it had a right to be (the traveling lane) rather than at another point in the street where it had a right to be (the bus stop)” (40 NY2d, supra, at 502). 31 In Stuart-Bullock v State of New York not only was there a lack of clarity about the cause of the accident, the claimant failed to show that the section of highway where the accident occurred was not reasonably safe (38 AD2d 626, 627- 628 [3d Dept 1971], affd 33 NY2d 418 [1974]). In Applebee v State of New York the claimant argued that a stop sign should have been in place at an intersection but the proof was that the driver did stop, even though there was no sign commanding her to do so (302 NY 502, 507-508 [1955]). In all but one of these cases, then, the highway in question was reasonably safe. The only exception was Applebee, but the driver there conducted herself as if it had been reasonably safe. She stopped where she would have done if a proper stop sign had been erected. Thus, none of them has any relevance to the present case, where the highway was found not to have been reasonably safe. The brief then cites the rule that “a defendant cannot be held liable if its negligence did not materially increase the chance of injury” (Brief, 36, 29). This might suggest that the State has no liability because its inaction did not make the intersection more dangerous than it already was. Such reasoning must be rejected, however. There are sins of omission as well as sins of commission, and a failure to change the signage at this intersection after its inadequacy was brought to the 32 State’s attention is as much culpable negligence as any misguided or careless action would be.6 What is more, the State’s inaction did “materially increase the change of injury.” Doing nothing about a known danger does not increase the danger itself, but it materially increases the chance that someone will be injured as a result of that danger. The odds get worse the longer the danger is allowed to persist.7 That is why defendants are liable for inaction. As the PJI says, Negligence may arise from doing an act that a reasonable person would not have done under the same circumstances, or, on the other hand, from failing to do an act that a reasonably prudent person would have done under the circumstances (PJI 2:10). It is not realistic to expect a party to correct a dangerous condition immediately upon notice, but it is not fair to those who might be injured by the danger to allow 6 The State’s language echoes the 2010 decision, which cited the case on which the dissent had relied, Ernest v Red Creek Central School District, as holding “that a claimant need only establish 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’”” (Brown v State of New York, supra, 79 AD3d at 1583, quoting Ernest, supra, 93 NY2d at 675, quoting Humphrey v State of New York, 90 AD2d 901, 902 [3d Dept 1982], affd 60 NY2d 742 [1983]). Both the Ernest and Humphrey courts, however, found liability because of inaction in the face of a known danger. 7 For example, the odds of dying in a game of Russian roulette are only one in six each time it is played, but the risk of death goes up if one plays it repeatedly. 33 its threat to continue. The “reasonable time to repair” standard strikes the necessary balance between these two concerns. Once that time has passed there is no excuse for the ongoing risk to the public. For this reason the State has always been held liable for permitting a dangerous condition to persist on its highways beyond the time reasonably necessary to remedy the danger. By ignoring this problem the State materially increased the odds that it would lead to an injury. It has an absolute and nondelegable duty to make its highways reasonably safe, and though it had notice it failed to make any effort at all in that direction for an unreasonable time. It is liable here, and it cannot avoid that liability by arguing that if it had done what it was supposed to have done it would have failed to make the road safe in any event. Point Three. There is no basis in law or sound policy to require the claimant to show how the intersection could have been made reasonably safe. Closely interwoven with these arguments are those found in subsection B of the State’s brief, which begins with the erroneous statement that the Appellate Division majority required “claimant to prove only that a dangerous condition at the intersection was a proximate cause of the accident” (Brief, 38). As has been made abundantly clear, the majority held instead that the State was negligent in 34 permitting that condition to exist for an unreasonable length of time, and this made it liable for its foreseeable consequences. The State’s argument, however, is not really set out in this misleading heading. Instead, it insists that the claimant had to prove “that there was a remedial action that reasonable care required the State to take and that it failed to take” (Id.). In this view, “the [Fourth Department] majority allows claimants to prevail by asserting that the State should have taken remedial action, without specifying what reasonable care required” (Id., 39), but “[t]he failure to take ‘any’ action is negligent only if there is at least one action that reasonable care care required the State to take” (Id., 41). This Court well knows what reasonable care required, however. It was to make this intersection reasonably safe. No court that has considered the facts here has ever concluded that this intersection met that standard. Judge Midey found “that claimant had established her burden of establishing that the State had notice of a dangerous condition and had failed to take reasonable measures to remedy that condition” (R. 675, emphasis added). The Appellate Division majority said in 2010 that the State “offered no evidence that the intersection was ‘reasonably safe’ as configured or that it complied with any highway engineering standards at the time it was built or at the time of the accident” (Brown v State of New York, supra, 35 79 AD3d at 1583). Even the dissent presumed the dangerousness of the intersection (Id., at 1586). The State can not argue that this intersection could not be made reasonably safe, shrug its shoulders, and walk away from a dangerous condition, exposing the public to what it deems an unavoidable risk. Such an argument would be untenable in the extreme. The law lays an absolute duty on the State, and its “shall” implies “can.” It is not incumbent on the claimant, then, to show that this intersection could be reasonably safe. She had a right to rely on its being so. What is left— logically, at least—is a theory that the claimant had to prove exactly what the State should have done in order to meet its obligations. It is certainly true that the claimant has argued consistently that a four-way stop was required here. This follows from the circumstances of the case and the accident history. But this proof went beyond what was necessary. The State fails to show that claimants who are injured as a result of a highway danger have to act as highway engineers and show the court how the State would be able to do what the State is required to do—to make the highways safe. None of the cases cited by the State holds that a claimant or plaintiff has to identify a specific course of action through which the State or municipality should fulfill its duty. In most of them the fix for the problem was obvious, and it was 36 mentioned in expert testimony and recited as part of the case for liability. No case ever holds, however, that such proof was legally necessary. The brief cites Ernest v Red Creek Central School District as if it depended on the obvious fact “that the corrective action the county should have taken was extending a sidewalk” (Brief, 43), but the memorandum shows that the Court there was just as concerned with the installation of a crosswalk, which was not explicitly requested but which would have been needed “by implication” (93 NY2d 664, 674 [1999]). Regardless, there was evidence here that a four-way stop was necessary and the proof on that issue was accepted by both the Court of Claims and the Appellate Division. Judge Midey’s conclusion that the accident would have happened anyway because a four-way stop would not have been in place in 2003 clearly implies that this was the only step which would have prevented it and thus that only a four-way stop would have made this intersection reasonably safe. The Fourth Department did not discuss what specific measures the State was required to take, and it did not need to carry out such an inquiry. It did, however, affirm and make explicit the Court of Claims’s determination that the absence of a four-way stop was one of the factors that made this intersection dangerous. The court did not “assume” this, as the State erroneously claims (Brief, 40). It found this as a fact, and as an affirmed finding of fact it is one over which this Court has only limited review power. There was legally sufficient evidence to 37 support it; it was far from irrational to accept Parrone’s testimony that a four-way stop was required here. While Sherman claimed that such a stop would be the last choice for an intersection like this one, he also indicated that the interim measures would not have stopped the right-angle accidents. The lower courts’ findings that one was necessary is beyond review and indeed is the most rational conclusion from all the evidence. Yet the State does not really make this argument explicitly. Instead, it returns to its claim that the Appellate Division majority endorsed liability without negligence. There is no need to point out how flawed that position is, but it is worth noting how strained are the arguments made from the cases cited. In discussing Alexander v Eldred (63 NY2d 460 [1984]), for instance, the brief states, “This Court did not find that the dangerous condition of the highway by itself was the proximate cause; instead, the Court upheld jury findings that the State’s [sic] negligence in failing to take appropriate corrective action was the proximate cause” (Brief, 42).8 But nobody is injured directly by a highway design or signage decision. The harm flows from the highway configuration that was 8 The State adds that in the present case “claimant failed to show that a four-way stop would have been appropriate before this accident and that the State’s failure to take reasonable interim measures was a proximate cause” (Brief, 42). There was proof that a four-way stop was appropriate from the outset, however, and the State’s failure to take any measures at all was properly held to be a proximate cause of the accident. 38 created or allowed to persist thanks to a negligent decision or a negligent failure to act. The real cause of the accident in Alexander was the dangerous condition of the highway, which the City of Ithaca knew of but allowed to persist. It was the same here. There is no relevant difference between these two cases. In Schneemaker v State of New York this Court affirmed a finding against the State for its “negligence in failing to conduct an adequate investigation and study in making its determination that the 25-mile-per-hour advisory speed sign was the appropriate traffic control device for the intersection” (70 NY2d 985, 986 [1988]). The State argues that this is somehow different from the situation here. As the affirmed Appellate Division decision in Schneemaker shows, however, “[T]here was no legally binding control governing the intersection which, if followed, would have prevented the accident. The posted advisory speed signs are not binding and were customarily ignored, which fact was known to the State. … Under such circumstances, the State’s failure to post lower mandatory speed limit signs at this dangerous intersection may be deemed a proximate cause of the accident” (125 AD2d 964, 965 [4th Dept 1986]). It is hard to see how this stands as a refutation of the holdings here, that the State is liable because it failed to take action when action was necessary to prevent accidents like this one. Nor was there any indication in Turturro v City of New York that the result rested on proof that particular traffic calming measures should have been 39 undertaken (Brief, 44-45). This Court found liability for the same kind of inaction found here: “The specific act or omission by the City claimed to have caused Anthony’s injuries was the City’s failure to adequately study or implement roadway design changes intended to reduce speeding in response to repeated complaints” (28 NY3d, supra, at 488). The brief says of Posman v State of New York (117 AD2d 915 [3d Dept 1986]) that “the State’s negligence in failing to modify its traffic safety plan for the intersection and to correct the hazardous condition on the road approaching it were proximate causes of the accident” (Brief, 44). That is exactly what Judge Midey found on remittitur, though. In short, not only do these cases fail to bear out the State’s theories, they are substantially consistent with the orders under review. The last sections on the State’s liability only repeat these arguments in the context of the “different theory” that the State has to review its plans in the light of subsequent events. Once again, nothing in the case law demands what the State says is necessary: “to prove that ‘review’ would have produced corrective action that would have reduced the risk of an accident” (Brief, 46). This is a reiteration of the fallacy that the State merely has to perform a study and do what that study concludes, which implies that it does not always have to make its highways reasonably safe. 40 This is wrong, as this brief has shown, and the cited case of Atkinson v County of Oneida (59 NY2d 840 [1983]) does not hold otherwise. That case was decided on the basis of the parties’ familiarity with the intersection and on the limitations of the plaintiff’s argument; the plaintiff had insisted only “that added lights and [warning] signs would have better served to warn drivers of the intersection’s character”. This Court held that “as both drivers were well acquainted with the intersection and its right of way and all possible obstructions, under the instant facts, the county’s failure to erect the additional lights and sign cannot be deemed a proximate cause of plaintiff’s injuries” (59 NY2d at 842). There is nothing in the Atkinson decision about the probable outcome of a planning process. Atkinson, however, is illuminating in the ways in which it differs from the present case. First of all, the Atkinson plaintiff was arguing for the same kind of incremental measures that the State argues for; the courts here and the Atkinson court all concluded that these would not have prevented either accident. Secondly, the danger presented here differed from that in Atkinson in that it was concealed from most drivers. The State never observed or factored in the effects of the vertical curve and even those who were familiar with the intersection would have had no reason to suspect that their view to the south was impaired. It was only under a specific configuration of traffic, with one fast-moving vehicle behind the 41 crest of the curve and another stopped at the intersection, that the conditions for a right-angle accident came together. This happened frequently enough to make corrective measures imperative, but not so frequently that drivers could be expected to know of the problem. These unpredictable sight-line problems are an essential part of this case, and they explain and justify the affirmed findings that Mr. Friend was not negligent when he drove into the intersection and was struck by the Browns’ motorcycle. That is the final issue on appeal. Point Four. The affirmed finding that Mr. Friend was not negligent should not be disturbed as it is supported by a fair interpretation of the evidence. The State’s alternative theory on appeal is that the lower courts erred in holding that the other driver, Henry Friend, was not negligent. This raises only a very narrow issue, because it rests on affirmed findings of fact. As a result, this Court is limited to reviewing it for legal sufficiency (NY Const., Art. VI, § 3 [a]; CPLR 5501 [b]). “Legal sufficiency” is not self-defining. In jury cases its meaning is well established: 42 Our review of that issue is limited to whether there is a “‘valid line of reasoning and permissible inferences which could possibly lead rational [persons] to the conclusion reached by the jury on the basis of the evidence presented at trial’” (Mazella v Beals, 27 NY3d 694, 705, [2016], quoting Cohen v Hallmark Cards, 45 NY2d 493, 499 [1978]; see Ziecker v Town of Orchard Park, 75 NY2d 761, 762-763 [1989]). If “the evidence is such that it would not be utterly irrational for a jury to reach the result it has determined upon, and thus a valid question of fact does exist” then this Court “may not conclude that the verdict is as a matter of law not supported by the evidence” (Turturro v City of New York, supra, 28 NY3d at 483, quoting Cohen, 45 NY2d at 499). This Court has set out various formulations of the standard as it applies to non- jury cases (Karger, Powers of the New York Court of Appeals § 13.6 [rev 3d ed]), but it appears that the two standards of review are largely indistinguishable. Friedman v State of New York, a case originating in the Court of Claims, held that an affirmed finding of fact “must be upheld if supported by evidence in the record” (67 NY2d at 285, supra). What quantum of evidence is required was left unspecified, but Alpert v 28 William St. Corp. holds, “When this court is confronted by affirmed findings of fact, its scope of review is limited to ascertaining whether there is any evidence in the record to sustain the lower courts’ determination” (63 NY2d 557, 574 [1984]). In this connection the Court cited Cohen v Hallmark Cards (45 NY2d 493, 499), the same passage cited above with respect to the affirmed findings of a jury. The burden on the State, then, is to show that there was no evidence in the record from which any rational finder of fact could find that Henry Friend was not 43 negligent. It should be clear by now, however, that there is ample evidence that this accident was caused by the sightline problems at the intersection and not by any lack of reasonable care on the part of Mr. Friend. The State insists that the bald fact that Friend was the other driver makes his actions “a proximate cause as a matter of law” (Brief, 48). This is utterly false and misleading. The mere fact of the accident does not impute liability to Mr. Friend any more than it would to the State, nor does it compel any finding of negligence. Both courts below found that this intersection was not reasonably safe, which means that it could not always be navigated safely in the exercise of reasonable care (Smart v Wozniak, 58 AD2d 993, 994 [4th Dept 1977]). The fact of the accident, then, did not imply a lack of reasonable care on Mr. Friend’s part. Its causes were for the Court of Claims to determine, and it had a rational basis for concluding that it was the unreasonable danger posed by the intersection which caused the accident, not any lack of reasonable care on the part of Mr. Friend. There are three major bodies of evidence that support this conclusion—not, as defendant claims, the mere fact of the accident history (Brief, 52). The first is Mr. Friend’s testimony that he had looked south an appropriate time before easing into the intersection and had not seen the Brown’s motorcycle. It is of course true that a self-serving declaration that one did not see the other vehicle is rarely if ever sufficient, in itself, to exclude negligence. But this was a dangerous intersection, 44 and what Mr. Friend testified to was exactly what one would expect from that danger. As Parrone testified, motorists at Paddy Lane had insufficient notice of oncoming vehicles; only a portion of a northbound vehicle was visible when it was between 550 and 897 feet away. There was thus evidence from which the Court of Claims could rationally conclude that Mr. Friend’s account was not just plausible but truthful, that he had looked south when only the top third of any oncoming vehicle would have been visible, and that this was insufficient to give him reasonable notice that this motorcycle was on the road and heading towards him. There is also the history of right-angle accidents at the intersection, frequently showing the same pattern—a motorist stopped at Paddy Lane who claimed after the accident to have been unaware of the northbound vehicle. While the Appellate Division may have overstated the number of accidents concerned, that history calls out for some rational explanation. The sightline problem caused by the vertical curve explain those accidents as well as this one. To ignore it is to conclude that those who were injured at this intersection were victims of a mere statistical anomaly and that an unusual number of drivers on Paddy Lane were spontaneously negligent—negligent in exactly the same way. 45 Taken together, there was more than sufficient evidence to support the affirmed conclusions that this intersection was not reasonably safe and that Mr. Friend’s actions were excused by that danger. Had his exculpatory testimony been given in a vacuum it might not have been sufficient, but it is not just credible but persuasive when read in the context of the history of similar accidents and the expert proof that, for all practical purposes, an oncoming vehicle would have been undetectable under certain circumstances. This Court should not disturb the holding that the accident happened despite his exercise of reasonable care. The State tries to undercut this evidence in two directions. The first of its arguments is not truly focused on Mr. Friend’s liability. Rather, it is a direct assault on the affirmed conclusion that this was a dangerous intersection. When the State insists that Parrone’s proof was that vehicles could be observed at a distance of 897 feet (Brief, 49), it is arguing that there is nothing dangerous about this intersection at all. The brief does not mount a direct attack on the lower courts’ finding to the contrary, but this branch of the argument attacks it indirectly. Indeed, the State insists that Parrone’s proof “established the opposite of the findings below” (Brief, 50). But it was eminently reasonable for the courts below to conclude that Parrone had proved what he thought he was proving—that so much of an oncoming vehicle was obscured by the vertical curve that it was effectively invisible at some distances. Moreover, what he proved made sense not 46 only of this accident but of the long history of similar ones. The State’s position, on the other hand, is that the intersection was reasonably safe and every one of these accidents was something that “just happened to happen”. It is both unappealing on a rational basis and unsound insofar as it contradicts an affirmed finding. It should be added that Judge Midey’s conclusion was not based on an “unexpected about-face” (Brief, 51). He had indeed found it unrefuted that “there were no view obstructions that would have prevented Friend from seeing the motorcycle” (Id.), but this conclusion was not contradicted by his ultimate findings. The court had referred initially (R. 643) to the report of Stephen Sklenar (R. 348), who was unaware of the vertical curve; Sklenar stated in that report that Route 350 was level (R. 347).9 There is no inconsistency between finding that there were no bushes, signs, or poles which would block the view to the south— the ordinary meaning of “view obstruction” —and a finding that the roadway was configured so that traffic was sometimes all but invisible. Thus, there is no “about- face” to explain. The State’s second argument is that Mr. Friend’s negligence is conclusively established by his conviction after trial for failure to yield the right of way, a fact brought out here over counsel’s objection (R. 77). This was for a Vehicle and 9 This is flatly wrong but not surprising, since it is unlikely that the problem would be apparent without a careful survey. 47 Traffic Law infraction and not a crime, and was imposed after a trial—not, as Judge Midey erroneously thought, upon a guilty plea. The State asserts that if a conviction of a crime is admissible as evidence, this conviction should be, too, and that since guilty pleas to traffic infractions are admissible then convictions after trial should be as well. Both of these distinctions are well established in law, however, and the State’s argument depends on obscuring them. This strategy appears clearly in the following passage from the brief: Typically, convictions are admissible in civil cases arising from the same events as prima facie evidence of the facts involved. Consistent with this principle, a conviction by guilty plea to a traffic infraction is admissible in a subsequent negligence action on the same facts (Brief, 54, citations omitted). Neither of these sentences is a correct statement of the law, and even the citations offered by the State argue against its claims. The first sentence cites to Schindler v Royal Ins. Co. (258 NY 310 [1932]), a case which is now subsumed under the rules of collateral estoppel (S. T. Grand, Inc. v City of New York, 32 NY2d 300, 303 [1973]).10 Friend’s conviction is not admissible under this theory, however. For one thing, the State is seeking to 10 The brief actually cites an outdated rule; when a conviction is admitted under current law it is no longer admitted as prima facie evidence of the facts, as it claims, but as conclusive proof; see Prince, Richardson on Evidence § 8-1107 (a) (Farrell 11th ed). 48 introduce evidence of Mr. Friend’s conviction against Mrs. Brown, who was not a party to the prior trial and was not in privity with either Mr. Friend or the State. It is black letter law that collateral estoppel runs only to parties in the prior proceeding or those in privity with those parties. Secondly, convictions for traffic violations have no collateral estoppel effect even against defendants: By statute collateral estoppel effect is denied to traffic convictions (Vehicle and Traffic Law, § 155) and determinations in small claims actions (see section 1808 of the Uniform City Court Act, Uniform Justice Court Act and New York City Civil Court Act). Even in the absence of statute, however, these minor suits are illustrative of the type of determination which, under accepted common-law principles, should not be held conclusive in later cases (Gilberg v Barbieri, 53 NY2d 285, 293 [1981], citing Restatement, Judgments 2d [Tent Draft No. 4], § 68.1, subd [c], and Comment d). As this Court added, “The brisk, often informal, way in which these matters must be tried, as well as the relative insignificance of the outcome, afford the party neither opportunity nor incentive to litigate thoroughly or as thoroughly as he might if more were at stake” (Id.). This is one reason that the Appellate Division excluded evidence of a conviction for a traffic infraction in Augustine v Interlaken (68 AD2d 705 [4th Dept 1979]). If Mr. Friend’s conviction cannot bind the claimant, is there another basis for its admission? The State insists there is, but its argument, contained in the second sentence cited above, verges on the disingenuous. Guilty pleas to traffic 49 infractions are admissible, but the rule behind this is not “consistent with [the] principle” behind collateral estoppel. Guilty pleas are admissible as admissions. As this Court said in Ando v Woodbury, “when [the defendant] pleaded guilty to the traffic infractions charged against him, his plea of guilty amounted to a statement or admission by him that he did the act charged. As such, it should be treated like any other admission or confession, and subject to the same rules relating to its weight and effect” (8 NY2d 165, 168 [1960]). This is an entirely different principle from those that govern collateral estoppel. As the Ando Court recognized, it is reasonable to distinguish between convictions and guilty pleas for evidentiary purposes. The distinction is anything but “illogical” (Brief, 54). Not a single Appellate Division case applies the same rules to both and as Gilberg suggests there are no good reasons for doing so. Judge Midey, who seemed to have thought that he was dealing with a plea (R. 643), was wrong to allow in this proof. Friend’s conviction has no preclusive effect and it is not an admission. It cannot be used to impeach him (Vehicle & Traffic Law § 155), where it would not be before the trier of fact as proof of the underlying facts. It should be all the more inadmissible when offered for those facts. That conviction is the only real evidence that the State has for the claim that Mr. Friend factually failed to yield the right of way to a vehicle which he saw or 50 should have seen.11 That failure is assumed here rather than being demonstrated, and both lower courts found to the contrary, that Friend had acted reasonably. There was a sound evidentiary basis for this finding. Even if his conviction had been properly admitted, moreover, that same evidence would indeed “support ... the ... determination that Friend’s alleged violation of the statute should be excused” (Brown v State of New York, supra, 144 AD3d at 1538). Friend is charged with seeing what was there to be seen, but he is not charged with seeing what road conditions rendered effectively invisible. There is clearly no culpable conduct if something outside of the driver’s control makes it impossible to see the other vehicle. That is what the courts here found, and for this reason the cases cited by the State have no bearing on the result. In Lilaj v Ferentinos, for example, the defendant’s vehicle “darted” into the intersection a “split second” before the collision (126 AD3d 947 [2d Dept 2015], respondent’s brief, 2). There was no indication of any difficulty in seeing oncoming traffic. In Crowe v Hanley the defendant crept into the intersection and blocked it, counted to four, crept forward and stopped again, and pulled in front of oncoming traffic a split second before the plaintiff stuck her vehicle (123 AD3d 755 [2d Dept 2014], respondent’s brief, 5-6, citing R. 197. 201-202, 229-30, 238, 347-349). Neither of 11 Sklenar’s conclusion is simply an opinion and in light of his ignorance of the vertical curve it has no weight. 51 these cases presents similar facts, then, and the other cases cited at page 56 of the brief merely state the rule of law. The brief also cites two cases involving guilty pleas: Lohraseb v Miranda, where the defendant was making a left turn across traffic and could not remember if she was facing a red or a green light (46 AD3d 1266 [3d Dept 2007], R. 25-26), and Rockman v Brosnan, where the 82-year-old defendant had no recollection of looking for oncoming traffic before he pulled out (280 AD2d 591 [2d Dept 2001], R. 97-98). Quite aside from the plea/conviction distinction, these are clearly so unlike the case here that they cannot control its result. To find Mr. Friend liable it had to be shown that he acted unreasonably in light of a danger which he was or should have been aware of, and this required the court to decide exactly what would have come to his attention in the exercise of reasonable care. The Court of Claims conducted such an inquiry and concluded that Mr. Friend had not violated the statute and was not negligent. The Appellate Division affirmed: Although defendant correctly contends that “drivers have a duty to see that which through the proper use of [their] senses [they] should have seen’” (Huff v Rodriguez, 45 AD3d 1430, 1431; see Deering v Deering, 134 AD3d 1497, 1499), there is evidence from which the court could fairly conclude that Friend would not have been able to observe the motorcycle in time to avoid the collision (Brown v State of New York (2), supra, 144 AD3d at 1538). 52 In other words, proof that the sightlines were such that Mr. Friend could not have seen the Browns’ motorcycle was proof that the motorcycle was not there to be seen. This was more than legally sufficient evidence in support of the holding that Mr. Friend was not negligent and that the dangerous condition of the intersection both excused his conduct and served as the sole cause of this tragic accident. Conclusion. The orders of the Appellate Division should be affirmed. Respectfully submitted Rochester, New York August 25, 2017 Michael Steinberg, Esq. 109 Rutgers Street Rochester, New York 14607 (585)295-8544 of counsel to Norman Andrew Palmiere, Esq. The Palmiere Law Firm Attorneys for Linda Brown 205 St. Paul Street -Suite 300 Rochester, New York 14604 (585)232-6144 Anthony J. LaDuca, Esq. LaDuca Law Firm, LLP Attorneys for Linda Brown 125 State Street, Suite 400 Rochester, New York 14614 (585)454-1000 53 Certification pursuant to 22 NYCRR § 500.13 (c) (1) Michael Steinberg, an attorney duly licensed to practice law in the State of New York, hereby certifies that the brief herein contains 13,869 words as determined by the word processing program in which it was created. Michael Steinberg, Esq. "" ") 109 Rutgers Street Rochester, New York 14607 54