Linda M. Brown,, Respondent,v.State of New York, Appellant.BriefN.Y.May 1, 2018APL-2016-00226 APL-2016-00227 To be Argued by: JONATHAN D. HITSOUS Time Requested: 20 minutes Claim Nos. 108961, 110037 State of New York Court of Appeals LINDA M. BROWN, Respondent, -against- THE STATE OF NEW YORK, Appellant. _________________________________________ LINDA M. BROWN, as Administratrix of the Estate of WAYNE BROWN, Respondent, -against- THE STATE OF NEW YORK, Appellant. BRIEF FOR APPELLANT STATE OF NEW YORK BARBARA D. UNDERWOOD Solicitor General ANDREW D. BING Deputy Solicitor General JONATHAN D. HITSOUS Assistant Solicitor General of Counsel ERIC T. SCHNEIDERMAN Attorney General of the State of New York Attorney for Appellant The Capitol Albany, New York 12224 Telephone: (518) 776-2044 Dated: May 30, 2017 i TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES .................................................................... III PRELIMINARY STATEMENT ................................................................. 1 JURISDICTIONAL STATEMENT ........................................................... 4 QUESTIONS PRESENTED ..................................................................... 5 STATEMENT OF THE CASE .................................................................. 6 A. Henry Friend collides with claimant’s motorcycle ................. 6 B. Claimant sues the State in the Court of Claims .................... 8 1. Pleadings .......................................................................... 8 2. Trial .................................................................................. 9 a. DOT’s incomplete intersection study ...................... 9 b. The appropriate corrective action ......................... 12 c. Friend’s role in the accident .................................. 15 3. Post-trial briefing ........................................................... 17 D. The Court of Claims dismisses the claims............................ 18 E. A divided Fourth Department reinstates the claims ........... 19 F. The Court of Claims on remittal finds the State wholly responsible for the accident .................................................. 22 G. The Fourth Department affirms the apportionment of 100% of the liability to the State .......................................... 24 ii ARGUMENT POINT I CLAIMANT FAILED TO PROVE THAT THE STATE’S NEGLIGENCE WAS A PROXIMATE CAUSE OF THE ACCIDENT .................................... 27 A. The State’s failure to complete the traffic study and take corrective action was not a proximate cause of the accident .................................................................................. 28 B. The Fourth Department erred as a matter of law in requiring claimant to prove only that a dangerous condition at the intersection was a proximate cause of the accident ........................................................................... 38 POINT II ALTERNATIVELY, FAULT SHOULD BE APPORTIONED TO THE OTHER DRIVER ................................................................................. 47 A. Friend would have seen the motorcycle if he had acted with reasonable care ............................................................. 48 B. Friend’s unexplained violation of the Vehicle and Traffic Law demonstrated his negligence............................. 53 CONCLUSION ........................................................................................ 58 iii TABLE OF AUTHORITIES CASES PAGE Alexander v. Eldred, 63 N.Y.2d 460 (1984) .......................................................... 28, 29, 42 Ando v. Woodberry, 8 N.Y.2d 165 (1960) .................................................................. 54, 55 Applebee v. State, 308 N.Y. 502 (1955) ...................................................... 29, 37, 44, 50 Atkinson v. Cty. of Oneida, 59 N.Y.2d 840 (1983) ................................................................ 46, 49 Augustine v. Vill. of Interlaken, 68 A.D.2d 705 (4th Dep’t 1979) ...................................................... 55 Boulos v. State, 56 N.Y.2d 714 (1982) ...................................................................... 53 Brooks v. Thruway Auth., 73 A.D.2d 767 (4th Dep’t 1979) ...................................................... 39 Buchholz v. Trump 767 Fifth Ave., LLC., 5 N.Y.3d 1, (2005) ........................................................................... 34 Burgos v. Aqueduct Realty Corp., 92 N.Y.2d 544 (1998) ................................................................ 29, 42 Crowe v. Hanley, 123 A.D.3d 755 (2d Dep’t 2014) ..................................................... 56 Deering v. Deering, 134 A.D.3d 1497 (4th Dep’t 2015) .................................................. 48 iv TABLE OF AUTHORITIES (cont’d) CASES (cont’d) PAGE Eastman v. State, 303 N.Y. 691 (1951) ........................................................................ 44 Ernest v. Red Creek Cent. Sch. Dist., 93 N.Y.2d 664 (1999) ................................................................ 29, 43 Friedman v. State, 67 N.Y.2d 271 (1986) ...................................................................... 31 Gilberg v. Barbieri, 53 N.Y.2d 285 (1981) ...................................................................... 54 Hagglund v. Erie R.R., 210 N.Y. 46 (1913) .......................................................................... 52 Hain v. Jamison, 28 N.Y.3d 524 (2016) ...................................................................... 48 Hicks v. State, 4 N.Y.2d 1 (1958) ................................................................ 33, 37, 53 Horton v. Warden, 32 A.D.3d 570 (3d Dep’t 2006) ....................................................... 56 Kelly, Matter of v. Safir, 96 N.Y.2d 32 (2001) ........................................................................ 51 Kirchoff v. Erie Cty., 18 N.Y.2d 849 (1966) ...................................................................... 48 L. Smirlock Realty Corp. v. Title Guar. Co., 63 N.Y.2d 955 (1984) ...................................................................... 47 v TABLE OF AUTHORITIES (cont’d) CASES (cont’d) PAGE Lilaj v. Ferentinos, 126 A.D.3d 947 (2d Dep’t 2015) ..................................................... 56 Lopes v. Rostad, 45 N.Y.2d 617 (1978) ...................................................................... 28 Lohraseb v. Miranda, 46 A.D.3d 1266 (3d Dep’t 2007) ..................................................... 57 Martin v. Herzog, 228 N.Y. 164 (1920) ........................................................................ 57 Mink v. Keim, 291 N.Y. 300 (1943) ........................................................................ 28 Murchison v. Incognoli, 5 A.D.3d 271 (1st Dep’t 2004) ........................................................ 56 Murray v. State, 38 N.Y.2d 782 (1975) ...................................................................... 36 Neva-Wet Corp. of Am. v. Never Wet Processing Corp., 277 N.Y.2d 163 (1938) .................................................................... 50 Oelsner v. State, 66 N.Y.2d 636 (1985) ...................................................................... 32 Palsgraf v. Long Island R.R., 248 N.Y. 339 (1928) ........................................................................ 40 People v. Hildebrandt, 308 N.Y. 397 (1955) ........................................................................ 55 vi TABLE OF AUTHORITIES (cont’d) CASES (cont’d) PAGE Posman v. State, 117 A.D.2d 915 (3d Dep’t 1986) ..................................................... 44 Rechtschaffen’s Estate, In re, 278 N.Y. 336 (1938) ........................................................................ 54 Rockman v. Brosnan, 280 A.D.2d 591 (2d Dep’t 2001) ..................................................... 57 Scheemaker v. State, 70 N.Y.2d 985 (1988) ...................................................................... 43 Shea v. Judson, 283 N.Y. 293 (1940) ........................................................................ 48 Sheehan v. City of N.Y., 40 N.Y.2d 469 (1976) .................................................... 29, 30, 37, 42 Schindler v. Royal Ins. Co., 258 N.Y. 310 (1932) ........................................................................ 54 Stern v. Int’l Ry. Co., 220 N.Y. 284 (1917) ........................................................................ 39 Stuart-Bullock v. State, 33 N.Y.2d 418 (1974) ...................................................................... 37 Tomassi v. Town of Union, 46 N.Y.2d 91 (1978) ............................................................ 28, 36, 39 Tortora v. State, 269 N.Y. 167 (1935) ........................................................................ 39 vii TABLE OF AUTHORITIES (cont’d) CASES (cont’d) PAGE Turturro v. City of N.Y., 28 N.Y.3d 469 (2016) .............................................. 28, 29, 44, 45, 56 Weigand v. United Traction Co., 221 N.Y 39 (1917) ........................................................................... 48 Weiss v. Fote, 7 N.Y.2d 579 (1960) ................................................ 18, 20, 21, 45, 46 Woicianowicz v. Phil. & Reading Coal & Iron Co., 232 N.Y. 256 (1921) ........................................................................ 47 Zadins v. S.K. Pommerville, 300 A.D.2d 1111 (4th Dep’t 2002) .................................................. 56 STATE STATUTES Court of Claims Act § 25 .................................................................................................... 5 C.P.L.R. § 2103(b)(2) ....................................................................................... 5 § 2211 ................................................................................................ 5 § 5513(a) ........................................................................................... 5 § 5513(b) ........................................................................................... 5 § 5601(d) ........................................................................................... 4 § 5602(a)(1)(i).................................................................................... 4 Vehicle and Traffic Law § 155 ............................................................................................... 55 § 1142(a) ....................................................................... 16, 47, 53, 55 PRELIMINARY STATEMENT These claims arose from an accident in April 2003 at a state-controlled intersection when a truck driven by Henry Friend collided with a motorcycle driven by Wayne Brown on which his wife, claimant Linda Brown, was a passenger. Claimant was injured and her husband was killed. She brought the claims on her own behalf and as administrator of her husband’s estate. At the trial in the Court of Claims on the issue of liability, claimant argued that the State knew that the intersection was dangerous but failed to complete a traffic study of the intersection that it began in 1999 and install a four-way stop sign there before the accident. In her post-trial memo, claimant expressly abandoned any argument that incremental remedial steps short of a four-way stop sign would have prevented the accident. The Court of Claims (Midey, J.) dismissed the claim and entered judgment for the State, concluding that the State was negligent in failing to complete the traffic study and take appropriate corrective action, but that the State’s negligence was not the proximate cause of the accident. The court reasoned that claimant failed to prove that, had the State completed its study, it would have installed a four-way stop 2 sign, which the court found to be a remedy of last resort, in time to prevent the accident. A divided panel of the Fourth Department reversed this judgment. The majority held that, to establish proximate cause, claimant need only prove that a known dangerous condition at the intersection, rather than the State’s negligence, was a proximate cause of the accident. The majority remitted the claim to the Court of Claims. A two-justice dissent would have affirmed. The dissenting justices held that claimant could prevail only by identifying what corrective action the State should have taken and that the failure to take such corrective action was a proximate cause of the accident. The dissent concluded that a fair interpretation of the evidence supported the trial court’s conclusion that the State’s negligence was not the proximate cause of the accident. On remittal, the Court of Claims found that a dangerous condition at the intersection proximately caused the accident. It also held the State solely responsible, finding no comparative negligence on Friend’s part. On the same record on which the court previously found Friend’s view unobstructed, it found, without explanation, that he was unable to 3 see claimant’s motorcycle “at any time” before the accident. Following a damages trial and the entry of damages judgments, the State appealed the comparative negligence finding to the Fourth Department, which affirmed. By reinstating this action in 2010, the Fourth Department majority erred. Claimant’s proof did not establish proximate cause. The Court of Claims reasonably found that the State’s exercise of reasonable care would have led to incremental remedial measures, not a four-way stop sign, and that these measures would not have materially reduced the risk of the accident. Thus, the State’s negligence—the failure to take those incremental measures—was not a proximate cause of the accident. Alternatively, even if a legal basis existed to hold the State liable for this accident, there was no basis to hold it solely responsible. Because Friend could have seen the motorcycle if he had acted with reasonable care, and because he violated the Vehicle and Traffic Law in failing to yield the right of way to the motorcycle, the court should have apportioned a share of the fault for the accident to him. 4 Accordingly, this Court should reverse the 2016 Memorandum and order and dismiss the claims. Alternatively, it should reverse the 2016 Memorandum and order and remit with instructions to apportion liability to Friend. JURISDICTIONAL STATEMENT This Court has jurisdiction over this appeal. The actions originated in the Court of Claims, which has entered judgments awarding relief to claimant, both on behalf of her husband’s estate and on her own behalf. (R10-25.)1 The Fourth Department’s 2016 order (R1961-64), which affirmed those judgments, finally determined the actions, and was appealable as of right pursuant to C.P.L.R. § 5601(d) to the extent that it brought up for this Court’s review the Memorandum and Order of the Appellate Division, Fourth Department, entered December 30, 2010. In addition, by order dated February 9, 2017, this Court granted the State’s motions for leave to appeal the 2016 Memorandum and Order to the extent it raised issues that are not appealable as of right (R1969-72). See C.P.L.R. § 5602(a)(1)(i). 1 “(R_)” refers to the record on appeal, which includes all the material before the Fourth Department in the two appeals to that court. 5 The State’s appeals are timely. Claimant served the Fourth Department’s 2016 order with notice of entry, by regular mail, on November 16, 2016. The State served and filed its notices of appeal and served its motions for leave within 35 days of November 16, 2016, and thus the State’s appeals are timely. See C.P.L.R. §§ 2103(b)(2), 2211, 5513(a), (b). The State’s appeals of the judgments of the Court of Claims to the Appellate Division were also timely. The Court of Claims served certified copies of the judgment on August 6, 2015 (R10-17), and the State filed and served its notices of appeal on August 31, 2015 (R4-5), within 30 days of the service of the judgments by the Court of Claims. See Court of Claims Act § 25. The issues presented in the State’s appeal are preserved for this Court’s review because the State raised them in the Court of Claims, which addressed them in its decisions (R647-51, 734-35), and the State briefed and argued them before the Fourth Department, which also addressed them. QUESTIONS PRESENTED 1. Did the Court of Claims correctly find that the State’s negligence in failing to complete its intersection study and take 6 corrective action was not a proximate cause of the accident, because claimant failed to prove that the State in the exercise of reasonable care would have placed a four-way stop sign at the intersection before the accident occurred in April 2003? 2. 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? 3. Alternatively, did the Fourth Department err in not apportioning liability for the accident to Friend where the evidence supports only one conclusion: he acted negligently because he did not see what was there to be seen and he failed to yield the right of way, in violation of the Vehicle and Traffic Law? STATEMENT OF THE CASE A. Henry Friend collides with claimant’s motorcycle On April 27, 2003, Henry Friend’s2 pickup truck collided with a motorcycle driven by Wayne Brown on which his wife, claimant Linda Brown, was a passenger. (R106.) The accident happened at the 2 In its 2010 decision, the Fourth Department mistakenly referred to the other driver as “William” Friend. (R67, 680.) 7 intersection of State Route 350 and Paddy Lane in the Town of Ontario, New York. (R83.) The State, through its Department of Transportation (“DOT”), controlled the intersection. (R125-26.) Route 350 is a north/south road, with one lane in each direction. (R86-87.) Paddy Lane is an east/west road, also with one lane in each direction. (R89.) Drivers on Paddy Lane approaching the intersection encounter stop signs in both directions, signaling that drivers traveling on Route 350 have the right of way. (R89.) Because drivers on Route 350 have the right of way, they are permitted to travel through the intersection at 55 mph. (R101.) According to Friend, the accident occurred on a “beautiful, sunny day.” (R73; see also R350-51.) At about 1:00 p.m., Friend was driving his truck east on Paddy Lane, and stopped at the stop sign when he reached the intersection. (R72, 76.) He looked north on Route 350, then south, then north again before entering the intersection to continue east. (R72, 75, 85-86.) “Between five and ten seconds” after he last looked south, his truck collided with the motorcycle, which was traveling north on Route 350. He did not see the motorcycle before the impact. (R73-74, 76, 382; see also R349 [visual depiction].) In the 8 aftermath, claimant was hospitalized for her injuries. (R371-72.) Her husband died. (See R364.) Friend and claimant’s husband were both quite familiar with the intersection. Friend had lived in the Town of Ontario since 1999. (R80.) He had crossed that intersection “many, many, many times,” and was well aware that he needed to stop before entering the intersection. (R75-76.) Claimant’s husband had lived near the intersection his entire life, and drove through it “every day.” (R110.) B. Claimant sues the State in the Court of Claims 1. Pleadings Claimant commenced two actions against the State arising from the accident, one on her own behalf and one on behalf of her husband’s estate. (See R26-27, 53.) In both actions, claimant alleged that the State acted negligently by placing inadequate signage at the intersection and allowing an excessive speed limit on Route 350. Claimant further alleged that the State acted negligently by not taking corrective action in response to complaints about the intersection’s danger. (R33-34, 55-56.) Claimant alleged that the State’s negligence increased the risk of an accident at the intersection. (R34, 56.) 9 2. Trial In March 2007, the Court of Claims held a trial on the issue of liability. Witnesses testified about the conditions at the intersection, the adequacy of DOT’s response to complaints about the intersection, and the role that Friend’s conduct played in the accident. a. DOT’s incomplete intersection study Larry Sherman, a DOT engineer in the region that included the accident site, explained that DOT studies road conditions in response to specific requests, and determines the appropriate corrective action based on its rules and guidelines, engineering standards, and engineers’ professional judgment. (R123, 132.) When studying an intersection, DOT considers the most recent available three years of accident data, which it obtains from the New York State Department of Motor Vehicles. (R158-59, 229, 244.) Sherman explained that DOT takes an “incremental” approach to modifying traffic control devices. (R165.) The first step consists of determining whether the traffic controls in place even need upgrading. Sometimes, the best fix is to clear brush around the intersection or draw pavement markings. (R166.) The types of accidents that have 10 occurred at the intersection could play a role in choosing a corrective action. (R161-63.) For instance, if drivers were already obeying a stop sign at an intersection, it might not make sense to increase the stop sign’s visibility. (R231.) In the years leading up to the April 2003 accident, the intersection of Route 350 and Paddy Lane saw a number of right-angle accidents, although the number varied from year to year. (R229-30, 240-41.) In the three-year period between March 31, 1995 and April 1, 1998, there were six right-angle accidents at the intersection, of which four, like this accident, involved northbound vehicles on Route 350. (R216-21, 435-38, 441-43.) Between July 1998 and December 1998, there were again four right-angle accidents involving vehicles traveling north on Route 350. (R477-78, 470-90.) That number remained steady in 1999, although it appears that wet conditions, rather than visibility concerns, were responsible for one accident. (R492-503.) In 2000 and 2001, no right-angle accidents occurred involving northbound vehicles on Route 350. (R505-13.) And in 2002 up until September, there was only right- angle accident involving a northbound vehicle on Route 350, and there the driver on Paddy Lane lost control of the vehicle and slid through the 11 stop sign. (See R529-46.) Thus, in the three years before this accident, there was at most one accident that was comparable to this accident in that it involved a vehicle northbound on Route 350. Sherman testified that DOT began studying the intersection in January 1999, at the Town of Ontario’s request. (See R126, 130, 139; see R409-23, 433). In February 1999 a DOT engineer reviewed the intersection and calculated that drivers on Paddy Lane could see 897 feet to the south on Route 350. (R427-28.) DOT also requested and reviewed accident history. (R141, 170, 430-31.) As of June 1999, DOT informed the Town that it was still gathering data. (R472-73.) Sherman admitted that between then and the accident in April 2003, DOT did not complete the study or change the signage at the intersection. (R185-87, 211-15, 229-30.) At the time of the accident, that signage consisted of intersection warning signs on Route 350, and stop and stop-ahead signs on Paddy Lane. (R204-05.) Edward G. Parrone, who testified for claimant as an expert in road design (R252-53), opined that DOT’s failure to complete the study before April 2003 was inconsistent with acceptable engineering 12 standards. (R282.) He believed that by June 1999 DOT already had enough information to complete the study. (R281.) b. The appropriate corrective action Claimant and the State disputed what, if any, corrective action DOT should have taken at the intersection given the information available to it at the time. Parrone opined that, to prevent accidents like claimant’s, DOT should have placed a four-way stop sign at the intersection. (R275-76, 298, 304.) He explained that the volume and nature of the accidents suggested that it was necessary to get cars to slow down on the approach to the intersection, and that a four-way stop was the “minimum” way to ensure that they did, serving as a “first line of defense.” (R275-76.) Sherman, by contrast, explained in detail that the intersection did not require a four-way stop sign. Sherman opined that four-way stop signs were appropriate only when: (a) other traffic-control alternatives have been exhausted; (b) a three-color signal was not warranted; and (c) the need to reduce right-angle accidents outweighed the disruption that would arise from stopping traffic at the intersection in all 13 directions. In Sherman’s 30-year experience at DOT, he had rarely seen situations that warranted a four-way stop sign. (R164-65.) DOT had not exhausted its options for corrective action at the intersection. Sherman explained that a first option would often be to increase the size of the existing sign, use more reflective material, or try dual posting—the posting of signs on the right and left sides of the road. If that did not work, DOT could attempt to draw drivers’ attention to the intersection by placing intersection warning signs like those already at Route 350, which tended to heighten the awareness of drivers who were unfamiliar with the intersection, or supplementing existing signs with flashing beacons to make them more visible. (R120-22, 153, 232-33.) A further possibility was a flashing yellow-and-red signal over the intersection, which would heighten awareness of the intersection for drivers on the road with the right of way, and emphasize the stop requirement for drivers on the intersecting road. (R131-32.) Sherman further explained that a four-way stop sign would prove disruptive. Route 350’s average traffic volume was substantially higher than Paddy Lane’s. (R154.) As a “general rule,” four-way stop signs should be limited to intersections where the traffic volume on each road 14 is similar. (R166.) Otherwise, Sherman cautioned, four-way stop signs could decrease right-angle accidents at the expense of increasing rear-end accidents on the road with the higher volume. (R166, 179-80.) Sherman opined that the intersection did not require a three-color signal. Despite the disparity in volume between the two roads, he concluded that the traffic volumes were “far too low” to justify a three-color signal there. (R164-65.) When confronted with Sherman’s description of DOT’s incremental approach to corrective action, Parrone qualified his opinion, describing a four-way stop sign as a “temporary” measure that DOT should have pursued to reduce accidents while it completed its study. (R278, 298.) Parrone agreed with Sherman that it was reasonable to take an “incremental approach” to corrective action in response to safety issues identified in a study. (R298.) Earlier in the litigation, Parrone had listed incremental steps short of a four-way stop sign. (R299-303, 566.) In his testimony, he conceded that DOT could have taken less disruptive corrective action— such as dual posting or replacing existing signs—and monitored the intersection’s accident history before considering a four-way stop sign. 15 (R276, 300-01). And he admitted that a four-way stop sign would be necessary if this corrective action failed to reduce the observed pattern of accidents. (R301.) If DOT had taken corrective action short of a four-way stop sign and then observed the reduced accident history that occurred in 2000 and 2001, it “could have waited a bit longer” and evaluated the accident history in 2002, and then tried other corrective action, such as installing flashing beacons on signs already there, before proceeding to a four-way stop sign. (R302; see R567.) c. Friend’s role in the accident Witnesses also discussed the role that Friend, the other driver, played in the accident. Stephen F. Sklenar, a police accident reconstructionist who investigated the scene (see R81-82), concluded that the accident was caused by Friend’s failure to yield the right-of-way at the stop sign. (R93.) Sklenar confirmed that neither driver had been speeding. (R90-91, 97-98, 348; see R362-63, 372.) He observed that Route 350 had no evident defects or “view obstructions that would have prevented the operator of the pickup truck [Friend] from seeing the oncoming motorcycle.” (R347-48.) 16 Parrone, claimant’s expert, did not dispute that Friend’s failure to yield the right of way caused the accident. In general, Parrone observed that Route 350 had a “vertical curve” south of the intersection. (R271.) But he also observed that drivers stopped at the intersection looking south on Route 350 could see oncoming traffic despite the curve. In his opinion, the average driver on Paddy Lane stopped at the intersection would see the upper third of an approaching northbound vehicle from 897 feet away, and would see all of the vehicle from 550 feet away. (R272-73, 275, 297.) He did not suggest that Friend’s sight distance would be any different from that of the average driver. Friend testified and admitted that he was charged and ultimately convicted for failing to yield the right of way, in violation of Vehicle and Traffic Law § 1142(a). (R76-77; see R380-83.)3 During his testimony, Friend was asked if he saw claimant’s motorcycle before the accident, and answered, without further detail, “No, I didn’t.” (R74.) But Friend did not mention any view obstructions at the intersection or otherwise try to excuse or explain his failure to yield the right of way. 3 The Court of Claims appears to have assumed that Friend was convicted on his guilty plea. (R643.) In connection with the State’s appeal to the Fourth Department, it discovered that he was convicted following trial, and disclosed this information to the Fourth Department. 17 3. Post-trial briefing The Court of Claims directed the parties to submit post-trial briefs in lieu of closing arguments. In her post-trial brief, claimant argued that a four-way stop sign was the only corrective action that DOT could have reasonably taken under the circumstances. (R585, 593-95.) She abandoned any argument that the State’s failure to take corrective action short of a four-way stop sign proximately caused the accident: There were many times during the trial that Claimant’s Counsel may have lingered on a topic such as improved signage or foliage. This was not done in an attempt to suggest that this accident would have been prevented by improved signage or removing and trimming foliage; in fact the purpose of the questioning was to give Mr. Sherman every opportunity to eliminate these mitigating factors. (R593 (emphasis added)). In response, the State argued that it was totally speculative that DOT would have placed a four-way stop sign at the intersection before the April 2003 accident. (R617-18.) The State further argued that Friend’s negligence proximately caused the accident in whole or in part. (R603-04, 619-20, 639.) 18 D. The Court of Claims dismisses the claims The Court of Claims entered judgment for the State and dismissed the claims in their entirety. (R654-55.) The Court of Claims found that the State’s failure to complete its study of the intersection barred it from asserting immunity under Weiss v. Fote, 7 N.Y.2d 579 (1960). (R649.) It further found that the State acted negligently by failing to complete its study and take remedial action. (R651.) But the inquiry “d[id] not end at this point.” (R649-50.) Rather, the court observed, it had to determine whether the State’s negligence, i.e., its failure to complete the study and take remedial action, proximately caused the accident. (R650.) The court found that the State’s negligence was not a proximate cause of the accident. Noting that Parrone, claimant’s expert, considered a four-way stop sign to be the “only safety option available to the State,” the court rejected his opinion that the State should have placed a four-way stop sign at the intersection before the April 2003 accident. Instead, it credited Sherman’s opinion that a four-way stop sign was a remedy of “last resort.” (R650-51.) The court found it “significant” that Parrone and Sherman agreed that the State could 19 reasonably have taken an “incremental approach,” evaluating other corrective action before considering a four-way stop sign. (R650-51.) Because it was “entirely too speculative” that the State would have place a four-way stop sign at the intersection in time to prevent the accident even if it had acted with reasonable care, the Court of Claims concluded that claimant failed to establish that the State’s negligence was the proximate cause of the accident. (R651.) Claimant subsequently moved for reconsideration, but the Court of Claims denied her motion. (R673-76.) The court observed that the State breached its duty of care because it had failed to take “reasonable measures” to remedy a danger at the intersection (R675.) However, it stood by its finding that claimant could not prove that the State’s “breach of its duty in failing to address a dangerous condition” was a proximate cause of the accident. (R675-76.) E. A divided Fourth Department reinstates the claims Claimant appealed the judgment. (R658.) Over a two-justice dissent, the Fourth Department reinstated the claim and remitted for further proceedings. The majority found that the State was aware that a dangerous condition existed at the intersection, namely, “the vertical 20 curve in the line of sight looking south from Paddy Lane, combined with the speed limit of 55 mph and the absence of four-way stop signs at the intersection.” (R684.) The majority repeatedly indicated that the State’s negligence was its breach of its “continuing duty to review” its plan of the intersection “in light of its actual operation.” (R684.) It also held that, “[w]hen defendant is made aware of a dangerous highway condition and does not take steps to remedy it, defendant can be held liable for the resulting injuries.” (R683.) The majority found (as had the Court of Claims) that because the State did not complete a study of the intersection, it was not entitled to immunity under Weiss v. Fote. But the majority disagreed with the Court of Claims’ basis for finding that claimant had failed to demonstrate proximate cause. The majority held that claimant showed that the State had notice of the intersection’s dangerous condition and failed to take remedial action, thus establishing the State’s failure to maintain the intersection in a reasonably safe condition. (R683.) Under these circumstances, the “appropriate inquiry” was “whether the dangerous condition was the proximate cause of the accident.” (R682.) This inquiry obligated claimant to prove only that the “absence of safety 21 measures contributed to the happening of the accident by materially increasing the risk, or by greatly increasing the probability of its occurrence.” (R684 (quotation omitted.)) The majority held that by focusing the proximate-cause inquiry on the State’s failure to complete the study rather than on the intersection’s dangerous condition, the Court of Claims erroneously “reintroduce[d] elements of the Weiss v. Fote doctrine into the analysis.” (R682.) The majority did not rule that claimant had established proximate cause. Instead, it remitted the case to the Court of Claims to determine in the first instance whether the intersection’s dangerous condition was a proximate cause of the accident. (R684.) The two dissenting justices would have affirmed the judgment dismissing the action. They agreed that the State’s negligence was the failure to undertake an adequate study. (R685.) But they rejected the majority’s holding that claimant could establish proximate cause simply by showing that the dangerous condition was a proximate cause of the accident; instead, they “agree[d] with the [Court of Claims] that defendant’s negligence was not a proximate cause of the accident.” (R685.) 22 The dissenting justices would have held that claimant was required “to 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.” (R686.) They therefore agreed with the Court of Claims that “it was pure speculation to conclude that a four-way stop—the corrective action suggested by claimant’s expert—would have been in place before claimant’s accident even if defendant had undertaken a timely and adequate study.” (R686.) The dissent concluded that the lower court’s determination that the State’s negligence was not a proximate cause of the accident should be affirmed because it was supported by a fair interpretation of the evidence. (R686.) F. The Court of Claims on remittal finds the State wholly responsible for the accident On remittal, the Court of Claims determined that the dangerous condition at the intersection was a proximate cause of the accident. Applying the direction given by the Fourth Department majority, the court found that a four-way stop sign would have decreased the risk of the accident (R734), without considering whether the circumstances 23 actually required the State to place a four-way stop sign at the intersection. The court thus found the State liable for the accident. Moreover, the court attributed all liability for the accident to the State and none to Friend, the truck driver who collided with the motorcycle on which claimant was riding. Without explanation, the court abandoned its finding in 2008 that “unrefuted” evidence showed “there were no obstructions of view that would have prevented Mr. Friend from seeing the oncoming motorcycle.” (R643.) Instead, it determined that Friend stopped at the stop sign on Paddy Lane and then “carefully entered the intersection after looking both ways, but simply was unable to see the motorcycle operated by [claimant’s husband] at any time before the accident occurred.” (R735.) The reason Friend could not see, the court found, was the existence of Route 350’s vertical curve, combined with the 55 mph speed limit. (R734.) The court held a trial on damages, after which it entered final judgments against the State awarding claimant $3,963,292 on her own behalf and $3,085,955.50 on behalf of her husband’s estate. (R10-25.) 24 G. The Fourth Department affirms the apportionment of 100% of the liability to the State The State appealed the final judgments of the Court of Claims to the Fourth Department, which affirmed. Deferring to the Court of Claims, the Fourth Department concluded that a fair interpretation of the evidence supported the finding that Friend did not act negligently and thus bore no responsibility for the accident. (R1963.) While acknowledging the law that drivers have a duty to see what is there to be seen, the Fourth Department found that “there is evidence from which the [lower] court could conclude that Friend would not have been able to observe the motorcycle in time to avoid the collision.” (R1963.) But the only evidence it cited to support that proposition was the history of prior accidents at the intersection. (R1964.) The Fourth Department also stated that Friend’s conviction for failure to yield the right of way did not establish his negligence as a matter of law, because “only an unexcused violation of the Vehicle Traffic Law, if proven,” would constitute negligence. The Fourth Department then determined that Friend’s “alleged violation” of the statute was “excused” because there was “evidence” to support the lower court’s finding that Friend took reasonable care to comply with the 25 statute. (R1963.) Other than the intersection’s dangerous condition, the Fourth Department did not identify this evidence. Friend himself offered no excuse for his failure to yield the right of way. ARGUMENT The Fourth Department misapplied fundamental negligence principles in erroneously holding that claimant could establish proximate cause by showing simply that the dangerous condition of the intersection was a proximate cause of the accident. Claimant was required to prove that the State’s negligence—rather than just the existence of a known dangerous condition—was a proximate cause of the accident. As the Court of Claims correctly held in its first decision, claimant failed to carry this burden. The 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. Claimant was required to show that this failure was a proximate cause of the accident in that it materially increased the likelihood of the accident’s occurrence. Claimant did not satisfy her burden. Claimant effectively conceded that the only corrective action that would have materially reduced the 26 likelihood of the accident was a four-way stop sign. She expressly abandoned any claim that corrective action short of a four-way stop sign would have made a material difference. But both parties’ experts undermined claimant’s theory. They agreed that any corrective action would have been incremental and that it was reasonable for the State to try other remedies before a four-way stop sign. Claimant’s expert went further, admitting that it was unclear that these incremental remedies would have led to a four-way stop sign at the intersection before the accident occurred in April 2003. (R647.) For this reason, the State’s negligence—its failure to complete the intersection study and take appropriate corrective action—did not materially increase the likelihood of claimant’s accident. Accordingly, because claimant could not show that the State’s negligence was a proximate cause of this accident, the Fourth Department should have affirmed the dismissal of the claims. Alternatively, if this Court concludes that the State is liable for the accident, it should reverse and remit, directing the lower courts to apportion fault to the other driver. He failed to observe the claimant’s motorcycle, which would have been visible in the exercise of reasonable 27 care, and he failed to yield the right of way in violation of the Vehicle and Traffic Law. POINT I CLAIMANT FAILED TO PROVE THAT THE STATE’S NEGLIGENCE WAS A PROXIMATE CAUSE OF THE ACCIDENT The Fourth Department should have affirmed the judgment dismissing claimant’s action against the State. As the dissent explained, in the circumstances of this case, claimant “was required to show what corrective action should have been taken by [the State] and that such corrective action would have been completed before and would have prevented the accident.” (R686.) The Court of Claims, in its capacity as the fact-finder, reasonably held that claimant failed to do so, and in reversing, the Fourth Department erred in both fact and law. The Court of Claims’ fact findings are more consistent with the weight of the evidence than the Fourth Department’s, and this Court should adopt them. Furthermore, that court applied the wrong legal standards in finding that the existence of a known dangerous condition amounted to negligence and in remitting the proximate cause issue to the Court of Claims. 28 A. The State’s failure to complete the traffic study and take corrective action was not a proximate cause of the accident The Court of Claims correctly held that the State’s failure to complete its study and take corrective action was not a proximate cause of the accident. The basic elements of a negligence action apply in highway negligence claims against the State and local governments. Turturro v. City of N.Y., 28 N.Y.3d 469, 479 (2016) (in highway cases against government defendant is sued “under the ordinary rules of negligence”). The State has “a nondelegable duty to maintain its roads and highways in a reasonably safe condition,” Lopes v. Rostad, 45 N.Y.2d 617, 623 (1978), which requires the State to act with reasonable care under the specific circumstances of each case. Tomassi v. Town of Union, 46 N.Y.2d 91, 98 (1978); Mink v. Keim, 291 N.Y. 300, 304 (1943). Thus, the State might be liable for “fail[ing] to install a traffic control or warning device,” but only if the failure “was negligent under the circumstances.” Alexander v. Eldred, 63 N.Y.2d 460, 464 (1984) (emphasis added). The claimant bears burden of proving the elements of her negligence cause of action, including proximate cause. Id. 29 The State is not liable for negligence unless “the negligence was the cause of the event which produced the harm” to claimant. Sheehan v. City of N.Y., 40 N.Y.2d 496, 501 (1976); see also Alexander, 63 N.Y.2d at 468 (despite negligence, the State might not be liable if its “conduct in maintaining a road could not be the proximate cause of the accident”). “[T]o prevail at trial in a negligence case, a plaintiff must establish by a preponderance of the evidence that the defendant’s negligence was a proximate cause of plaintiff’s injuries.” Burgos v. Aqueduct Realty Corp., 92 N.Y.2d 544, 550 (1998) (emphasis added). Further, the defendant’s negligence is a proximate cause of an accident only if it is a “substantial factor” in bringing the accident about. Turturro, 28 N.Y.3d at 485. Claimant must demonstrate that the State’s negligence “materially contributed to the happening of the accident by materially increasing the risk” that it would occur. Ernest v. Red Creek Cent. Sch. Dist., 93 N.Y.2d 664, 675 (1999). Conversely, if the State’s negligence has “no bearing on the happening of the accident,” it is not a proximate cause. Applebee v. State, 308 N.Y. 502, 507 (1955). 30 Here, claimant argued that the State was negligent by failing to timely complete its intersection study and by failing to place a four-way stop sign at the intersection before the accident. (R275-76, 281-282.) But, as the Court of Claims correctly found, the negligence proved at trial was only the failure to complete the traffic study and take some corrective action, and not the failure specifically to install a four-way stop sign at the intersection. And failure to complete the traffic study was not shown to be the proximate cause of the accident, because claimant did not establish that had the State timely completed its study, a four-way stop sign would have been placed at the intersection before the accident—the only measure that, according to claimant, would have materially reduced the likelihood of this particular accident. Although the Court of Claims described the deficiency in the claim as lack of proximate cause (R651, 676), that holding necessarily rests on the court’s conclusion, based on the same evidence, that reasonable care did not require the State to install a four-way stop sign before the accident. In other words, appropriate corrective measures before the accident would not have included one. Cf. Sheehan, 40 N.Y.2d at 501 31 (elements of breach of duty and proximate cause “frequently overlap in the proof and theory which support each of them.”) The Court of Claims agreed with claimant that the State acted negligently by failing to timely complete its intersection study. (R651.) See Friedman v. State, 67 N.Y.2d 271, 286 (1986) (observing that the failure to study a known condition may be a breach of the State’s duty to the public). It further found that the State failed to “take reasonable measures to remedy” the danger. (R675-76, see also R649-50.) The “reasonable measures” referred to the earlier steps in DOT’s incremental approach that Sherman, the DOT engineer, identified, including clearing brush, dual posting, or supplemental beacons. (R645, 647, 651.) But the Court of Claims rejected claimant’s contention that the circumstances would have required the placement of a four-way stop sign at the intersection before the accident. That conclusion was proper. In reversing, the Fourth Department identified the absence of a four-way stop sign as a factor contributing to the intersection’s danger. (R684.) To the extent the Fourth Department found as a fact that reasonable care required the placement of a four-way stop sign at the 32 intersection before the accident, this Court should reject that finding. Where the Appellate Division reverses the fact findings made by the Court of Claims and makes new findings, this Court will determine which court’s findings are in accord with the weight of the evidence. See Oelsner v. State, 66 N.Y.2d 636, 637-38 (1985). Here, the findings made by the Court of Claims are more consistent with the weight of the evidence. Id. Both experts agreed that because a four-way stop sign is disruptive, it is not the remedy of choice unless other measures are unsuccessful. The State’s expert, Sherman, opined that any corrective action would have been implemented incrementally and that a four-way stop sign was a corrective action of “last resort.” (R651.) Claimant’s expert, Parrone, in a report received into evidence, specified a number of less disruptive prior measures, and observed that a four-way stop sign need not be used unless the earlier steps had been tried and had failed (R566-67), a view he abandoned at trial. (R275-276, 298, 304.) Thus, the Court of Claims correctly observed that both experts had opined that the State could reasonably try other measures first. (R165, 298.) 33 Sherman described a four-way stop sign as a “rarely used” corrective measure, one he had seen fewer than ten times in his career of over 30 years. (R164.) He explained that a four-way stop sign is appropriate only if (1) other types of traffic control improvements have been exhausted; (2) the great inconvenience of stopping all traffic is outweighed by the need to reduce the right-angle accidents; and (3) a three-color signal is not warranted. (R164-65.) Although Sherman explained that the low traffic volumes at the intersection did not warrant a three-color signal, he concluded that the intersection did not meet the other two conditions supporting a four-way stop sign because DOT had not yet evaluated the efficacy of multiple lesser measures and the great difference in traffic volumes on the two roads meant that a four-way stop sign could actually increase rear-end accidents. (R164-166.) See Hicks v. State, 4 N.Y.2d 1, 6 (1958) (observing that unnecessary stop signs could actually decrease safety by encouraging motorists to disregard them). And while Parrone testified at trial that a four-way stop sign was needed at this particular intersection, the Court of Claims properly chose not to credit that testimony. Parrone’s opinion at trial departed 34 from his earlier opinion as described in a written affidavit. (R566-67.) At trial Parrone also failed to cite an authoritative standard, such as the Uniform Manual of Traffic Control Devices, in support of his view. Therefore, his opinion lacked probative force. Buchholz v. Trump 767 Fifth Ave., LLC, 5 N.Y.3d 1, 8-9 (2005) (expert opinion that landlord should have taken specific safety measures to secure office building windows lacked probative force where expert cited no authority guidelines to support the opinion). Moreover, when Parrone was confronted with Sherman’s conflicting opinion, he re-characterized a four-way stop sign as a “temporary” measure while the State completed its study (R278, 298), without explaining why the rare step of a four-way stop sign would be any more appropriate on a temporary basis, or how the State could place a temporary four-way stop sign at the intersection and still effectively evaluate other corrective actions. Under the circumstances, the Court of Claims was justified in rejecting Parrone’s opinion. Although the experts agreed that a four-way stop sign would have reduced the risk of claimant’s accident, Parrone’s opinion that the four-way stop sign would have been installed before the accident in 35 April 2003 even if the State had taken an incremental approach was entirely speculative. He admitted that if the State had tried incremental corrective action and then observed the reduced number of accidents in 2000 and 2001, it could have waited before installing the more disruptive four-way stop sign. (R301-02.) The number of right-angle accidents dropped after 1999 without any changes to the intersection. There was only one right-angle accident involving a vehicle northbound on Route 350 in all of 2000 through September 2002, and that involved a driver who slid through the stop sign on Paddy Lane. (R505-13, 529-46.) Given this information, it was more likely that the State would have had no reason to place a four-way stop sign at the intersection before April 2003. (R647.) Further undermining Parrone’s opinion was his concession that in 2002, as a result of the reduced accident history, the State could have installed flashing beacons before ultimately installing the four-way stop sign. (R302.) Accordingly, Parrone’s conclusion that the State should have completed the incremental approach, with its attendant follow-up analysis of each step, and then installed the four-way stop sign, all before the accident, was pure speculation, insufficient to establish 36 proximate cause. Murray v. State, 38 N.Y.2d 782, 784 (1975) (refusing to engage in “impermissible speculation” as to what caused the car to leave the highway where there was no evidence). Absent from either experts’ testimony was any suggestion that flashing beacons or any other corrective action short of a four-way stop sign would have reduced the risk of this accident. Indeed, claimant denied that “this accident would have been prevented by improved signage or removing and trimming foliage.” (R593.) The Court of Claims thus properly observed that claimant considered a four-way stop the “only safety option available to the State.” (R651.) In light of the evidence that the four-way stop sign would not have been installed before the April 2003 accident, it follows that that if the State had acted with reasonable care in 1999 by completing its study, taking corrective action and monitoring the results, the accident would have been just as likely to occur. The Court of Claims’ conclusion is consistent with this Court’s settled precedents. This Court has recognized the principle that a defendant cannot be held liable if its negligence did not materially increase the chance of injury. See, e.g., Tomassi, 46 N.Y.2d at 98 37 (failure to makes plaintiff’s proposed signage and other improvements to the road was not a proximate cause of the accident because improvements would not have served “any useful purpose” under the circumstances); Sheehan, 40 N.Y.2d at 503, (city bus driver’s negligence was not a proximate cause of another vehicle’s rear-ending the bus because the bus would have been in the same place when it was hit even if it had complied with a local ordinance); Stuart-Bullock v. State, 33 N.Y.2d 418, 420 (1974) (failure to post reduce-speed and curve-warning signs was not a substantial factor in bringing about the accident absent evidence as to what actually caused the claimant’s car to leave the highway on a wet day); Hicks v. State, 4 N.Y.2d 1, 7-8 (1958) (failure to place a stop sign was not a proximate cause because the other driver would have ignored that as she ignored the existing signage); Applebee, 308 N.Y. at 507-08 (failure to replace a broken stop sign “contributed not one whit to the collision” because the driver stopped anyway). In sum, claimant failed to prove that if the State had acted with reasonable care in 1999 by completing its study, taking appropriate corrective action and monitoring the results, it would have placed a 38 four-way stop sign at the intersection before the accident in April 2003. Consequently, the State’s failure to take the corrective action that reasonable care directed did not make the accident materially more likely to occur, and thus was not a proximate cause of the accident. The Fourth Department should have affirmed the dismissal of the claim. B. The Fourth Department erred as a matter of law in requiring claimant to prove only that a dangerous condition at the intersection was a proximate cause of the accident In rejecting the analysis of the Court of Claims and the dissenting justices, the Fourth Department majority held that 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.” (R682.) This is error—the failure to take action to remedy a known dangerous highway condition is not negligent unless claimant proves that there was a remedial action that reasonable care required the State to take and that it failed to take. Further, it is that failure, not the mere existence of a known dangerous condition, that claimant must prove to be a proximate cause of the accident. 39 The dissent’s reasoning follows the long-settled rule that the State can be subject to liability only for dangers that it would have remedied had it acted with reasonable care. Stern v. Int’l Ry. Co., 220 N.Y. 284, 294 (1917) (the city’s duty was to keep the street “clear of dangerous and unnecessary obstructions which with reasonable care could be discovered and avoided”). The State’s duty to maintain reasonably safe roads does not mean that all dangers render the State liable. Otherwise, the mere happening of an accident could result in liability. Brooks v. Thruway Auth., 73 A.D.2d 767, 768 (4th Dep’t 1979) (“[t]he law is clear and long established that the mere happening of an accident, even one causing death, creates no presumption of liability against the State” (citing Tortora v. State, 269 N.Y. 167, 170 (1935)). As this Court has recognized, the State “is not an insurer of the safety of its roadways,” and “any public roadway, no matter how careful its design and construction, can be made safer.” Tomassi, 46 N.Y.2d at 97-98. By contrast, the 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 40 “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). Indeed, claimant here alleged more before the Court of Claims, specifying “what corrective action should have been taken by defendant” to make the intersection reasonably safe (R686)—completing the traffic study and installing a four-way stop sign. The Fourth Department majority found that the vertical curve on Route 350 south of the intersection, the 55 mile per hour speed limit on Route 350, and the absence of a four-way stop sign created a dangerous condition. (R684.) 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 actually was unreasonable. And to the extent that the majority found that reasonable care did in fact require a four-way stop sign, the evidence was more consistent with the contrary finding of the Court of Claims, as explained in Point I(A) above. The majority further indicated that, because claimant had established that the State had notice of the dangerous condition at the intersection and failed to take any remedial action, the State was 41 negligent because it failed to maintain the highway and the intersection in a reasonably safe condition. (R683.) But this reasoning is incorrect. The failure to take “any” action is negligent only if there is at least one action that reasonable care required the State to take. Thus, in the circumstances of this case, the majority obscures what claimant argued the State did wrong. Claimant did not try this case on the theory that the State’s negligence was the failure to take any remedial action. Instead, claimant staked her case on the theory that the State’s negligence was the failure to take specific action—complete its study and install a four-way stop sign at the intersection. (R593-596.) Claimant abandoned any argument that the incremental steps short of a four-way stop sign would have prevented the accident. (R585, 593-95.) The Court of Claims addressed the State’s failure to do “anything” when it found that the State’s failure to install the four-way stop sign before the accident was not negligent and that the failure to complete its study and take lesser remedial actions, although negligent, was not a proximate cause. The majority also erred in ruling that claimant could establish proximate cause by proving merely that the dangerous condition of the 42 intersection was a proximate cause of the accident. As explained above, the proper analysis, applied by the Court of Claims, required claimant to establish that the State’s negligence, not the dangerous condition of the intersection, was the proximate cause of the accident. See Burgos, 92 N.Y.2d at 55; Sheehan, 40 N.Y.2d at 501. 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.” In Alexander, 63 N.Y.2d at 469, the Court explained that plaintiff’s evidence supported a jury verdict that the city had failed to install “a needed stop sign” at the intersection and “that the accident might have been averted had a stop sign been in place.” 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 negligence in failing to take appropriate corrective action was the proximate cause. That is the correct standard, and claimant failed to show that a four-way stop sign would have been appropriate before this accident and that the State’s failure to take reasonable interim measures was a proximate cause. 43 The cases cited by the majority do not support the proposition that claimant need only show that the dangerous condition is a proximate cause. In Ernest v. Red Creek Central School District (R683-84), the Court observed that the defendant county failed to “implement[] any safety measures whatsoever,” but there was no question that the corrective action the county should have taken was extending a sidewalk. 93 N.Y.2d at 672-73. In holding that triable issues of fact existed on proximate cause, the Court noted that “had the sidewalk been extended to a point opposite the school driveway,” schoolchildren would have been less likely to cross the street under the dangerous circumstances that caused the accident. Id. at 674-75. And while this Court held in Ernest that the failure to remedy a known danger “can” render a government entity liable, id. at 673, it did not hold that such evidence alone sufficed for liability. Likewise, in Scheemaker v. State, 70 N.Y.2d 985 (1988) (R683), this Court found a factual question “whether the State’s negligence was the proximate cause of the accident.” Id. at 986 (emphasis added). And in Scheemaker the negligence was not the dangerous condition itself, but the State’s “fail[ure] to conduct an adequate investigation and study 44 in making its determination that the 25 mph advisory speed sign was the appropriate traffic control device for the intersection.” Id. Nor do Eastman v. State, 303 N.Y. 691 (1951) (R684) or Posman v. State, 117 A.D.2d 915 (3d Dep’t 1986) (R682-83), support the majority’s reasoning. The Court issued no opinion in Eastman, but the Court later read that case as holding that the State’s removal of a necessary stop sign was negligent and the proximate cause of the accident. Applebee, 308 N.Y. at 506-507. And in Posman, the Third Department held 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. 117 A.D.2d at 916-917. None of these cases supports the majority’s holding that claimant here need prove only that the dangerous condition was a proximate cause of the accident. Nor does this Court’s recent decision in Turturro undermine the Court of Claims’ proximate-cause reasoning. In Turturro, this Court found that the City’s negligent failure to respond to complaints of speeding was the proximate cause of the traffic accident because the plaintiff had persuaded the trier of fact that the defendant city would 45 have taken a specific form of corrective action—“traffic calming measures”—and that such measures would have deterred speeding and reduced the risk of an accident. Unlike this case, Turturro did not consider whether interim remedial steps would have preceded the traffic calming measures sought by the plaintiff, or the effect such steps would have had on the risk of accident. Finally, the Fourth Department majority erred in finding that the Court of Claims had reintroduced elements of the governmental immunity doctrine of Weiss v. Fote, 7 N.Y.2d 579 (1960), into the case after finding that the State was not entitled to immunity because it had not completed its traffic study. (R682.) Although the State could not rely on the Weiss immunity defense, that did not relieve claimant of her burden to prove that the State was liable, including that the State’s negligence was a proximate cause of the accident. See Turturro, 28 N.Y.3d at 485-87 (rejecting a Weiss immunity defense and then analyzing whether the City’s failure to study the highway and implement traffic calming measures was negligent and a proximate cause of the accident). Although the majority emphasized that claimant was proceeding under the “different theory” that, “having planned the 46 intersection, [defendant] was under a continuing duty to review its plan in the light of its actual operation and that the proof established a breach of such duty.” (R684, quoting Weiss, 7 N.Y.2d at 587), the lower court’s ruling addressed this very duty when it found that the State’s negligence was its failure to complete the study and take appropriate remedial action. To the extent the majority believed that the “different theory” changed the elements claimant needed to prove, it was mistaken. Claimant still bore the burden to prove that “review” would have produced corrective action that would have reduced the risk of an accident. Thus, in Atkinson v. County of Oneida, 59 N.Y.2d 840 (1983), a case that also involved the government’s continuing duty to review its intersection plan in light of its actual operation, this Court found that regardless of whether the defendant county breached its duty by not adding flashing lights and an advisory speed sign to the existing controls at an intersection—the modification the plaintiff proposed would have resulted from a review—the county’s failure “cannot be deemed a proximate cause of plaintiff’s injuries” because the evidence showed that the accident would have occurred anyway. Id. at 841-82. 47 So even if the State’s negligence here is characterized as a breach of its continuing duty to review, the Court of Claims properly required claimant to establish that this negligence was a proximate cause, and correctly found that she had not done so. Accordingly, this Court should reverse the Fourth Department’s 2016 Order and dismiss the claims. POINT II ALTERNATIVELY, FAULT SHOULD BE APPORTIONED TO THE OTHER DRIVER Alternatively, the court erred in 2016 when it affirmed the finding that the State was 100% liable. There is no “evidence in the record for the support of such determination[].” L. Smirlock Realty Corp. v. Title Guar. Co., 63 N.Y.2d 955, 958 (1984); see also Woicianowicz v. Phil. & Reading Coal & Iron Co., 232 N.Y. 256, 260 (1921) (“whether there was any evidence of . . . freedom from contributory negligence presents a question of law reviewable on this appeal”). Henry Friend, who drove the other vehicle involved in the accident, was negligent because he failed to see claimant’s approaching motorcycle even though he should have seen it in the exercise of reasonable care and, by entering the intersection at the same time as claimant’s motorcycle, he failed to yield the right of way in violation of Vehicle and Traffic Law § 1142(a). 48 Although proximate cause is generally a question for the fact- finder, the Court may decide proximate cause as a question of law when “only one conclusion may be drawn from the established facts.” Hain v. Jamison, 28 N.Y.3d 524, 530 (2016) (quotation omitted). As an initial matter, Friend’s negligence was a proximate cause as a matter of law because he indisputably contributed to the accident—he was the other driver. See Kirchoff v. Erie Cty., 18 N.Y.2d 849, 850 (1966) (where motorist involved in crash was negligent, the finding that his negligence was a proximate cause should not be disturbed). Accordingly, the majority was incorrect that he bore no fault for this accident. A. Friend would have seen the motorcycle if he had acted with reasonable care If Friend was able to see the approaching motorcycle “by the proper use of the senses,” he was duty-bound to see it and react appropriately. Weigand v. United Traction Co., 221 N.Y. 39, 42 (1917). He cannot proceed “blindly and wantonly” into an intersection without incurring liability. Shea v. Judson, 283 N.Y. 293, 298 (1940); see also Deering v. Deering, 134 A.D.3d 1497, 1499 (4th Dep’t 2015) (applying this rule to an intersection). The lower courts concluded that Friend did not breach his duty to see what was there to be seen, because he 49 could not see claimant’s motorcycle “at any time” before the accident. (R735, 1962.) The record, however, contains no evidence that would meaningfully support that conclusion. Friend testified that he did not see the motorcycle before the collision (R74), but gave the court no reason to think he could not see it. He described April 27, 2003, as a “beautiful, sunny day.” (R73.) And he had exceptional familiarity with the intersection, having crossed it “many, many, many times” (R75) without noticing any obstructions worth mentioning. That he collided with claimant’s husband—who was also quite familiar with the intersection, driving through it “every day” (R110)—undermines the conclusion that he bore no fault for this accident. See Atkinson, 59 N.Y.2d at 842 (both drivers’ familiarity with the intersection and its conditions demonstrated their fault for an accident with each other). Even claimant’s own expert, who identified the “vertical curve” on Route 350 (R271), testified that northbound vehicles on Route 350 were visible to a driver stopped at the intersection looking south at a number of points: a driver looking south on Route 350 from the intersection would see the top third of an approaching northbound vehicle from 897 50 feet away, and the entire vehicle from 550 feet away. (R272-73, 275, 297; see also R428.) Indisputably, the motorcycle was traveling no faster than the speed limit of 55 mph. (R97-98, 101.) This speed equates to 802/3 feet per second. From 897 feet away, a northbound vehicle on Route 350 approaching the intersection at 55 mph would reach the intersection in 11.1 seconds. From 550 feet away, it would reach the intersection in 6.8 seconds. Reading Parrone’s testimony about the vertical curve in tandem with Friend’s testimony that he last looked south between five and ten seconds before the collision (R76) leads to the inescapable conclusion that when he last looked south on Route 350 before the accident, claimant’s approaching motorcycle would have been visible in whole or in part. Therefore, the evidence not only fails to support the lower courts’ findings that Friend was unable to see the motorcycle, it establishes exactly the opposite. See Neva-Wet Corp. of Am. v. Never Wet Processing Corp., 277 N.Y.2d 163, 173-74 (1938) (reversing where the evidence established the opposite of the findings below). The conditions claimant’s expert described are similar to those this Court confronted in Applebee v. State, 308 N.Y. 502 (1955), where it 51 found the other driver entirely responsible. In that case, the driver had 600 feet of sight distance, and “would have seen [the claimant’s] car had she looked again in that direction.” Id. at 507. This Court therefore held it “obvious” that the accident occurred only because the other driver neglected to look in the direction of the oncoming traffic. Id. at 507-08. Moreover, Sklenar, the accident reconstructionist, reported that there were no view obstructions that would have prevented Friend from seeing the motorcycle. (R348.) The Court of Claims characterized this evidence as “unrefuted” in its 2008 decision dismissing the action (R643), but in its 2011 decision on remittal the court reversed itself on the same record and, without explanation, found that Friend was “unable” to see the motorcycle before the accident. (R735.) This unexplained about-face finds no support in the evidence. Nothing in this record enabled the lower courts to determine for themselves that Friend would not have been able to observe the motorcycle in time to avoid the collision. (R1963.) Any such finding would have required speculation on characteristics of the motorcycle and Friend’s pickup that were outside the record. Matter of Kelly v. 52 Safir, 96 N.Y.2d 32, 39 (2001) (faulting court for considering facts outside the record). Without any evidence even suggesting a total obstruction to his view, Friend’s testimony that he “did not” see the motorcycle (R74) is insufficient as a matter of law to establish that the motorcycle was not visible to him in the exercise of reasonable care. See Hagglund v. Erie R.R., 210 N.Y. 46, 50 (1913) (“If the train was in plain view when [plaintiff] looked, he was guilty of contributory negligence; and his testimony that he did not see what was in plain view cannot relieve him from the imputation”) (emphasis added). In its 2016 decision, the Fourth Department identified no evidence to support its contrary conclusion except the intersection’s accident history. (R1963-64.) Prior similar accidents do not rule out comparative negligence. First, proof that others had an obstructed view cannot independently prove that Friend’s view was obstructed, much less outweigh the clear record evidence that he could see the motorcycle. Second, there is no evidence that the accidents on which the lower courts relied were similar in the relevant respects. The record contains reports detailing each accident at the intersection from 1995 until 2002. Not once in those reports do the drivers or the police attribute the 53 accident in any part to limited sight distance arising from an incline on Route 350 southbound. The only sight obstructions anyone ever mentions are the sun and a telephone pole. (R445-48, 456.) See Boulos v. State, 56 N.Y.2d 714, 715 (1982) (observing that, despite the presence of multiple prior accidents, the record demonstrated that those accidents had other causes); see also Hicks, 4 N.Y.2d at 8-9 (questioning admission of past-accident evidence where only proof relating to those accidents showed that the circumstances differed). When the Fourth Department stated that “[i]n 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” (R682), it was mistaken. B. Friend’s unexplained violation of the Vehicle and Traffic Law demonstrated his negligence Friend’s conduct was also negligent because he violated the Vehicle and Traffic Law and offered no excuse. Friend was convicted of failing to yield the right of way to claimant, in violation of Vehicle and Traffic Law § 1142(a). (R1963.) In apportioning all of the liability to the State, however, the Court of Claims mistakenly failed to address Friend’s conviction at all, and the Fourth Department mistakenly found that it should be excused. 54 Typically, convictions are admissible in civil cases arising from the same events as prima facie evidence of the facts involved. See Schindler v. Royal Ins. Co., 258 N.Y. 310, 314 (1932); see also In re Rechtschaffen’s Estate, 278 N.Y. 336, 340 (1938) (extending this rule to “quasi-criminal” proceedings). Consistent with this principle, a conviction by guilty plea to a traffic infraction is admissible in a subsequent negligence action on the same facts. Ando v. Woodberry, 8 N.Y.2d 165, 168 (1960). However, the individual against whom the plea is admitted may explain his plea and the surrounding circumstances, and the fact-finder will then determine what weight, if any, to give the conviction. Id. at 171. The Ando Court left open the question whether convictions for traffic infractions following trial, like Friend’s, are similarly admissible. Id. at 169-70. While this Court has held that related convictions are not preclusive on the issue of liability in civil cases, see Gilberg v. Barbieri, 53 N.Y.2d 285 (1981), traffic-infraction convictions should be as admissible in subsequent negligence actions as guilty pleas, subject to the Ando rule that the weight to accord them is up to the trier of fact. It is illogical to suggest, see Augustine v. Vill. of Interlaken, 68 A.D.2d 705 (4th Dep’t 1979), that a traffic infraction conviction should not be 55 admissible at all due to the summary nature of the traffic proceeding when courts may consider a guilty plea intended to avoid that very proceeding. Here, Friend fought the accusation, was presumed innocent, and put the prosecution to its burden of proof beyond a reasonable doubt. People v. Hildebrandt, 308 N.Y. 397, 399 (1955). And as the Court in Ando observed 57 years ago, the Legislature has not banned the use of traffic-infraction convictions as evidence-in-chief in negligence cases, even though “it could easily have so provided.” Id. at 168-69; see Vehicle and Traffic Law § 155 (barring use of traffic infraction conviction for impeachment). Consequently, Friend’s conviction was admissible. The Court of Claims erred in not considering it at all as evidence of his negligence, and, as explained below, the Fourth Department erred in excusing his violation of the statute. Moreover, evidence in addition to the fact of Friend’s conviction establishes as a matter of law that he violated VTL § 1142(a) and thus acted negligently. Vehicles on Paddy Lane were required to yield the right of way to those on Route 350; the stop signs on Paddy Lane communicated this. (R89.) Friend knew about the stop sign, and he did 56 in fact stop. He admitted that he then entered the intersection and collided with the motorcycle. (R75-76.) While this Court has not considered the issue, all four departments of the Appellate Division have concluded in civil actions that facts such as these establish a driver’s negligence for failing to yield the right of way. Lilaj v. Ferentinos, 126 A.D.3d 947, 948 (2d Dep’t 2015); Crowe v. Hanley, 123 A.D.3d 755, 757 (2d Dep’t 2014); accord Horton v. Warden, 32 A.D.3d 570, 571-72 (3d Dep’t 2006); Murchison v. Incognoli, 5 A.D.3d 271 (1st Dep’t 2004); Zadins v. S.K. Pommerville, 300 A.D.2d 1111, 1112 (4th Dep’t 2002). In addition, the opinion and report of Sklenar, the accident reconstructionist, explained that Friend’s failure to yield the right of way caused the accident. (R348.) Claimant did not present any evidence in response to this opinion, so it remains “unrefuted” (R643). This unrefuted evidence sufficed to establish that Friend violated the Vehicle and Traffic Law, requiring that liability for this accident be apportioned to him. See generally Turturro, 28 N.Y.3d at 476 (affirming apportionment of 50% liability against the speeding driver who hit plaintiff). 57 The Fourth Department determined that Friend’s violation of the Vehicle and Traffic Law was excused by “evidence that Friend acted with reasonable care in an effort to comply with the statute.” (R1963.) The only possible evidence to which the court could have referred was the dangerous nature of the intersection. But conditions did not prevent Friend from being able to see the approaching motorcycle. And Friend’s testimony that he did not see the motorcycle (R74) is not a sufficient “excuse,” as two departments of the Appellate Division have concluded. Lohraseb v. Miranda, 46 A.D.3d 1266 (3d Dep’t 2007) (guilty plea); Rockman v. Brosnan, 280 A.D.2d 591, 592 (2d Dep’t 2001) (guilty plea). This Court should agree: to allow such conclusory testimony to excuse a violation of the Vehicle and Traffic Law would allow the statute and the public-safety goals it furthers to be “brushed aside . . . and the duty to obey attenuated to an option to conform.” Martin v. Herzog, 228 N.Y. 164, 171-72 (1920). Accordingly, this Court should hold that Friend was negligent, and that his negligence contributed to the accident requiring that liability be apportioned to him. 58 CONCLUSION This Court should reverse the Fourth Department’s 2016 Memorandum and Order and dismiss the claims. Alternatively, this Court should reverse the Fourth Department’s 2016 Memorandum and Order and remit with instructions to apportion liability to Friend. Dated: May 30, 2017 Albany, New York ANDREW D. BING Deputy Solicitor General JONATHAN D. HITSOUS Assistant Solicitor General of Counsel Respectfully submitted, ERIC T. SCHNEIDERMAN Attorney General of the State of New York Attorney for Appellant By: ____________________________ JONATHAN D. HITSOUS Assistant Solicitor General Office of the Attorney General The Capitol Albany, New York 12224 Telephone (518) 776-2044 Reproduced on Recycled Paper AFFIRMATION OF COMPLIANCE Pursuant to the Rules of Practice of the New York Court of Appeals (22 N.Y.C.R.R.) § 500.13(c)(1), Jonathan D. Hitsous, an attorney in the Office of the Attorney General of the State of New York, hereby affirms that according to the word count feature of the word processing program used to prepare this brief, the brief contains 11,391 words, which complies with the limitations stated in § 500.13(c)(1). s/ Jonathan D. Hitsous __ JONATHAN D. HITSOUS