[*1]
Rugar v State of New York
2015 NY Slip Op 51147(U) [48 Misc 3d 1216(A)]
Decided on July 1, 2015
Ct Cl
Ruderman, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on July 1, 2015
Ct Cl


Dennis S. Rugar, an infant under the age of 14 years, Claimant,

against

The State of New York[FN1] , Defendant. Claim No. 118851


Stephanie J. Rugar, Claimant,
against
THE STATE OF NEW YORK [FN2], Defendant. Claim No. 118852

Dennis J. Rugar, Claimant,
against
THE STATE OF NEW YORK [FN3] Defendant. Claim No. 118853

Scott Alexander DiNonno, as Executor of the Estate of Kimberly C. DiNonno a/k/a Kimberly Clara Zwissler DiNonno, Deceased and Scott Alexander DiNonno, Individually, Claimant,
against
THE STATE OF NEW YORK, Defendant. Claim No. 119153

In the Matter of the Claim of Robert Zwissler, Individually, and as Administrator of the Estate of Kathleen Zwissler, Claimant,
against
THE STATE OF NEW YORK, Defendant. Claim No. 120346




Claim No. 118851


For Claimant:
THE LAW FIRM OF WILLIAM G. SAYEGH, P.C.
By:Robert Weis, Esq. (Claim Nos. 118851, 118852)

LAW OFFICE OF JONNA M. SPILBOR, PLLC
By:John J. Ventosa, Esq. (Claim No. 118853)

FINKELSTEIN AND PARTNERS LLP
By:George M. Levy, Esq. (Claim No. 119153)

POWERS & SANTOLA, LLP
By:John K. Powers, Esq. (Claim No. 120346)

For Defendant:
HON. ERIC T. SCHNEIDERMAN
Attorney General for the State of New York
By: J. Gardner Ryan, Assistant Attorney General


Terry Jane Ruderman, J.

These five claims arise out of a two-vehicle accident that occurred in the afternoon on September 13, 2009 at the intersection of State Route 82 and County Route 90 [FN4] in the Town of Union Vale, Dutchess County. The trial was bifurcated and this Decision pertains solely to the issue of liability.

Background


At the accident site, State Route 82 is a two-lane, two-way road generally running in a north-south direction and County Route 90 is a two-lane, two-way road, generally running in an east-west direction. The speed limit on County Route 90 is 55 mph and the speed limit on State Route 82 is 45 mph. A stop sign was posted on County Route 90, along with a white stripe across the westbound lane, indicating to stop at the intersection with State Route 82. State Route 82 did not have a stop sign.

Kimberly C. Dinonno was driving a 2002 Nissan Maxima westbound on County Route 90 with her mother, Kathleen H. Zwissler, in the front-passenger seat and the grandmother, Doris E. Swartz, in the rear-passenger seat. They had just visited a relative at the Fountains, a senior residence on County Route 90, located a little more than three miles from the intersection. The Nissan passed a stop-ahead sign and a stop sign, without stopping, before entering the intersection with State Route 82. The Nissan was struck somewhere in the middle of the intersection by a 1998 Dodge Durango operated by Dennis J. Rugar traveling northbound on State Route 82. Neither vehicle left any pre-impact marks on the roadway. Rugar's wife was in the front-passenger seat and [*2]their eight-year-old son, Dennis S. Rugar, was in the rear seat.[FN5] The three occupants of the Nissan died from multiple injuries sustained in the crash and the occupants of the Dodge sustained serious injuries (Exs. 52, 54).

Claimants contend that the state is liable for the accident because the signs on County Route 90 were obscured by foliage and therefore the driver of the Nissan did not perceive the stop sign within sufficient time to stop before entering the intersection. The State concedes its responsibility to maintain the signs on County Route 90 because it intersects with State Route 82 (see Vehicle and Traffic Law §§ 1621, 1681). However, the State maintains that the accident was not due to any negligence attributable to the State. Rather, defendant argues that the sole proximate cause of the accident was the Nissan driver's inattention to the curve in the road, the posted signs and the stop line marking on the pavement, given that there was no evidence of the Nissan driver ever attempting to stop her vehicle before impact. Defendant argued that the Nissan driver's distraction was caused by a two to three minute telephone call made from her handheld cell phone at 3:37 p.m.[FN6] [FN7] An eyewitness testified that she observed the accident occur at approximately 3:45 p.m. and then yelled to a neighbor to call 911 (T:461-464). The accident was reported to police via a 911 call made at 3:45:53 p.m. (Ex. 9, T:1302). The state police were notified at 3:47 p.m. Claimants maintain that the telephone records are inconclusive as to whether the Nissan driver was using her telephone while en route to the intersection and that, in any event, the telephone call had ended approximately six minutes before the accident.[FN8]

Trial Testimony

Investigator Shannon Alpert testified that he has been employed by the New York State Police since 2000 and has been a member of the Troop K Collision Reconstruction Unit (CRU) in Wappingers Falls since 2007. Members of the CRU respond to all motor vehicle accidents [*3]involving fatalities and serious physical injuries. On September 13, 2009 at approximately 4:00 p.m., Alpert was notified of the accident. Alpert was familiar with the intersection, which was within his jurisdiction.

Alpert learned that a passenger in the Dodge (Stephanie Rugar) was an employee at Troop K headquarters. Therefore, to avoid any possible conflict of interest, Investigator Daniel Smith from the Troop F CRU in Middletown was assigned responsibility for the investigative report (Ex. 52). When Alpert arrived at the scene at approximately 5:00 p.m., fire department personnel and an ambulance crew were present along with Smith, Investigator Terrence Mullen, Sergeant Joseph Lutz, Lieutenant James Murphy and others.

Alpert spoke with Murphy and learned the basic facts regarding the accident. Alpert then proceeded to document the scene which involved taking photographs, examining the vehicles, looking for physical evidence, and making personal observations by walking both roads and spray painting locations to establish points of reference for measurements to be plotted with an electronic total work station. He described the electronic total work station as an instrument that uses infrared light to take dimensions and mark distances. A printed log of the points documented is coded and then entered into a software program to produce a diagram of the scene (Ex. 52, p 13).

Alpert observed the vehicles and their parts in their final resting places along with gauge and tire marks on the road. He walked along State Route 82 and County Route 90 trying to find some discernable pre-impact physical evidence; there was none. Specifically, there was no physical evidence, such as braking marks, to indicate that the driver of the Nissan attempted to stop before the collision. There was also no evidence from which to estimate the speed at which both vehicles had been traveling. Only an area of impact could be discerned.

Alpert observed four signs on County Route 90: 1) a stop-ahead sign; 2) an end of County Route 90 sign; 3) a State Route 82 sign with a double-headed arrow underneath, indicating proximity to an intersection with State Route 82; 4) a stop sign at the intersection of County Route 90 and State Route 82. As Alpert walked along County Route 90 toward the intersection, he observed that the first three signs were partially obscured by vegetation. He also noted that the stop sign was obscured by vegetation and was not visible until he was at a distance of 110 feet (T:245-246). Only at that point, could Alpert begin to see the red edge of the sign. Alpert took a series of photographs to show the line of sight from a vehicle traveling on County Route 90 (Exs. 3-8). However, he did not photograph the stop-ahead sign.

There was no posted speed limit sign on County Route 90, which meant that the maximum acceptable speed was 55 mph. Although the road is straight for .35 of a mile, as a vehicle approaches the intersection from County Route 90, there is a slight incline and a motorist cannot see the intersection until after passing the stop line (Exs, 7, 8).

Alpert conducted a peer review of Investigator Smith's report. Alpert explained that his role was to make sure that the report was factually and grammatically correct. The report provided:

"There was a white stop line painted in the eastbound lane of travel on Camby Road [County Route 90] at the intersection of SR-82. The stop line was painted from the northern centerline and extended to the northern fog line. A stop sign was located on the north shoulder of Camby Road [County Route 90] 30 feet east of the stop line and 4.4 feet north of the northern fog line. There was [*4]a State Route 82 route sign with a left and right directional arrow sign underneath it 191.4 feet east of the stop sign located at the intersection of Camby road [sic] and SR-82. This sign was partially obstructed by overgrown brush. There was also a Stop Ahead' Advanced traffic control sign 523 feet east of the stop sign at the intersection of Camby road [sic] [County Route 90] and SR-82. This sign was also partially obstructed by overgrown brush. The roadway lines in the area of the collision were intact and clearly visible. There are no posted speed limit signs on Camby Road [County Route 90]."

(Ex. 52, p 4).

The report concluded that:

"The primary cause of this collision is the operator of Vehicle No.1 for failure to yield the right of way entering an intersection.

A secondary contributing cause of this collision [FN9] is the partially obstructed advanced traffic control sign and the stop sign on Camby road [sic] [County Route 90] from overgrown brush."

(id. at 10).

Investigator Daniel Smith testified that he has been employed by the New York State Police for 11 years and with the Troop F CRU since 2007. On September 13, 2009, he arrived at the scene at approximately 6:30 p.m. and was briefed by Alpert. Murphy was in charge of the scene and he and Smith inspected the area. Smith authored the accident report and its diagram (Ex. 52). The absence of pre-impact marks meant that the exact speed of the vehicles could not be determined and that the exact point of impact could not be located. Somewhere in the middle of the intersection of State Route 82 and County Route 90 was considered to be the area of impact.

Sergeant Joseph Lutz testified that he was employed by the New York State Police from 1994 to 2014 and is now retired. On September 13, 2009, he was the Troop K Station Commander and responded to the accident. Lutz took a series of photographs which were received into evidence (Ex. II). He did not go back as far as Alpert had walked. Lutz testified that he did not observe any obstructions. Lutz also examined the vehicles.

Rebecca Lancaster, a Senior Court Clerk in Dutchess County, testified that she was familiar with the accident location because her mother resided at the Fountains for approximately two years and Lancaster had driven weekly on County Route 90 and through the intersection. She related that there were a series of curves at the beginning of County Route 90, near the Fountains, then the road straightened out for about a mile before the intersection with State Route 82. Lancaster testified that after the accident she went to the state police to report that she had observed foliage blocking the stop sign for two weeks prior to the accident. Specifically, on August 31, 2009, while traveling on County Route 90, Lancaster observed that the foliage was totally blocking the stop sign. She was 20 to 35 feet away when she first saw the sign. Although Lancaster stopped at the intersection, it was only because she was familiar with the area and had prior knowledge of the sign's existence. Lancaster signed a supporting deposition documenting her observations (Ex. 60).

Jill Dunlop resides near the intersection and testified that on September 13, 2009 at [*5]approximately 3:45 p.m., she was on her bicycle in the area (T:461-462). She saw the Nissan traveling on County Route 90 at a speed of 50 to 55 mph (T:462). Dunlop assumed the driver did not see the stop sign because she was not slowing down and was traveling too fast to stop at the stop sign. Dunlop also saw the Dodge traveling at 50 to 55 mph up the hill on State Route 82 and anticipated a collision. Neither vehicle left its lane of travel prior to impact. After the vehicles crashed, Dunlop screamed to the neighboring house to call 911. Later, Dunlop told the police officers what had happened and signed a written statement recording her observations (Ex. 62).

Dennis J. Rugar testified that on September 13, 2009, he was driving a 1998 Dodge Durango northbound on Route 82 at a speed of 45 mph. He stated that he was looking straight ahead as he drove up a steep hill toward the intersection. He never saw the Nissan prior to impact. The front end of his car struck the driver's side of the Nissan. After the collision, Rugar was disoriented.

Stephanie Rugar, the front-seat passenger in the Dodge, testified that she never saw the Nissan prior to impact and that her first indication of the accident was turning to speak to her husband and observing a horrified look on his face.

Scott Dinonno testified that his wife was the driver of the Nissan and that her mother and grandmother planned to visit an aunt who had just moved into the Fountains. Dinonno testified that, to his knowledge, his wife had never been to the Fountains nor driven on County Route 90 prior to the accident.

Robert Zwissler testified that his daughter was the driver of the Nissan and his wife, Kathleen Zwissler, was the front-seat passenger and his mother-in-law, Doris Swartz, was the rear-seat passenger. According to Zwissler, neither his daughter nor his wife had been to the Fountains previously and they were not familiar with the area (T:1274-1277).

Zwissler reviewed the families' cell phone bills for September 13, 2009 and prepared a summary of the calls (Exs. E-F, 67). Zwissler testified that because Swartz suffered from arthritis, they customarily dropped her off and picked her up, so that she would not have to walk long distances. Zwissler testified that according to their past practices, he believed that his daughter would have gone for the car and then telephoned her mother to let her know that the car was in front of the Fountains ready to pick up the grandmother. He attributed the 3:37 p.m. call to be from his daughter to her mother regarding their usual practice.

Portions of the deposition testimony of Michael Temple were read into evidence. He has been employed by the New York State Department of Transportation (DOT) since 1984 and has been the Resident Engineer for the Dutchess North Residency since 2005. He is responsible for the general maintenance of the state highways in Dutchess County including the accident location. Temple's duties included maintaining the posted signs and mowing the area to maintain sight distances.

According to Temple, there was no schedule for inspecting signs within his residency; rather, the signs were inspected on an "irregular basis" (T:1090). Temple explained that the signs are inspected when the crews are en route to their work site and in conjunction with their other assigned tasks. For example, if the crew was mowing then they were expected to check the signs in that location and to address any apparent issues. Thus, when asked if he ever assigned anyone to inspect the signage on County Route 90 in the year 2009, before the accident, Temple replied no because it was not a specifically assigned task; rather inspections were done as part of the work crew's normal duties (T:1092).

Temple conceded that there was a need for more frequent inspections for obscured signs during the growing season of late May through September because vegetation grows and it is more likely that signs would be obscured later in the season (T:1107-1108). Temple reviewed DOT records from September 2005 through September 2009 for tasks in his residency relating to clearing or trimming brush and trees to maintain sight distances of the posted signs. There were no references to trimming around the state regulatory signs located on County Route 90 and Temple could not show anything to establish that the signs posted on County Route 90 were inspected for obstructions prior to the accident (T:1110).

Temple stated that he regularly rides the roads within his residency for purposes of inspecting the roadways; however, he does not ride the intersecting roads (such as County Route 90) (T:1094). Temple stated, "[i]t's not common that I go onto the intersecting roads, because there are hundreds of them" (T:1095).

Joseph Mottoshiski testified that he has been employed by DOT for 10 years and for the last seven he has been a Highway Maintenance Supervisor I. Mottoshiski is in charge of a crew of eight to ten people who clear snow, fix potholes and mow grass on state roads, including the area of the accident.

On September 13, 2009, although he was not working, Mottoshiski received a call, after 3:00 p.m., that the State troopers requested workers at the intersection to address a sight distance problem. Mottoshiski responded to the scene. After a conversation with one of the state troopers, Mottoshiski proceeded down County Route 90 to observe the stop sign. He cut shrubbery along County Route 90 from a distance of five to ten feet from the sign. Mottoshiski testified that he could see the stop sign as he approached the intersection from County Route 90. Yet, when shown the photographs taken the night of the accident, Mottoshiski conceded that the stop sign was obscured by vegetation (Exs. 5, 6).

Michael Gajdos testified that he has been employed by the Dutchess County Highway Department for 23 years. In 2009, he was a Sector Chief responsible for County Route 90. On September 13, 2009, he received a call from his dispatcher relating a request from the state police to respond to the intersection. He walked along County Route 90. Gajdos testified that he did not see any vegetation blocking the stop sign. He observed personnel from DOT trimming brush near the stop sign.

William LaRose testified that he has been employed at DOT for 21 years and has been the Assistant Resident Engineer in Region 8 since 2007. The intersection and the signs on both State Route 82 and County Route 90 fell under his jurisdiction. LaRose went to the scene of the accident on September 15, 2009 and took photographs. He explained that, due to the curvature of County Route 90, a stop-ahead sign was necessary.

LaRose explained that DOT crews were responsible for riding State roads to ensure that the stop signs were clear of foliage. Regardless of their assignments, personnel were instructed to cut any obstructions that they observed. LaRose checked DOT files for complaints about sight distance on County Route 90 prior to September 13, 2009; he did not find any.

During his testimony, LaRose reviewed maintenance records of work performed on State Route 82 which should have included signs on county or non-state roads leading up to intersections with this state road. The most recent records were from June and July 2009.

When shown photographs taken on County Route 90 on the night of the accident, [*6]LaRose conceded that the stop sign was not clearly visible and that the other signs were particularly obscured by foliage (Exs. 3-5). He also noted that the surface of State Route 82 is not visible from a distance because of the elevation of the roads. LaRose testified that if his maintenance forces had observed the conditions depicted in exhibits 6 and 8, then he would want them to clear the foliage because maintenance workers should optimize visibility of the stop sign.

George Widas, a professional engineer, offered expert testimony on behalf of claimants. Widas has 47 years of experience in the area of highway safety, human factors analysis, optics and vision, hazard analysis and safety techniques. He is a certified professional engineer and a safety professional.

Widas concluded to a reasonable degree of engineering certainty that the driver of the Nissan was unfamiliar with the road and that, due to the horizontal and vertical alignment of the roads, and an embankment on the right of County Route 90, the intersection was not readily visible to her. County Route 90 curved to the right and sloped vertically as it approached the intersection, thus creating a limited sight distance to the driver. Additionally, the foliage obstructed the stop ahead and stop signs, thereby depriving the driver of visual information about the roadway conditions. The vegetative obstructions existed months prior to the accident and occurred annually. The driver failed to perceive the warning signs until she was within 60 feet of the intersection. Based upon the driver's speed, she did not have an opportunity to perceive the stop sign within sufficient time to stop her vehicle.[FN10] Thus, she proceeded past the stop sign without stopping and entered the intersection where she was struck by the Dodge.

Using the photographs, exhibits 3 through 8, taken the day of the accident, Widas concluded that the edge of the stop sign was visible at a distance of 110 feet. The stop-ahead sign is not depicted in the photographs. Widas also noted that the road curves and there is a wide mouth at the intersection; therefore, he opined, stop signs should have been placed on both sides of the road. In his view, the Route 82 sign was purely informational and not a warning sign. The driver had already driven through two other intersections that did not have any posted stop signs. Since County Route 90 was clear and straight for the one mile prior to the accident location, the driver could have perceived that she was traveling at a safe speed and not anticipating a stop sign.

Widas explained that the stop-ahead sign was necessary because the stop sign was not visible from a distance of 500 feet. Using the applicable sections of the Manual on Uniform Traffic Control Devices (Ex. 47), Widas concluded that the traffic control system was nonfunctioning, thus creating a dangerous condition which was a significant factor in causing the accident. Traveling at a speed of 55 mph, the driver did not have enough time to perceive the stop sign and brake.

Widas did not take issue with the location of the stop-ahead sign or the stop sign. Widas opined that, based upon his evaluation and the absence of pre-impact markings, it was consistent with the driver not seeing the stop-ahead sign or the stop sign. This conclusion was also consistent with Dunlop's eyewitness account that the Nissan did not slow down prior to entering the [*7]intersection and was in her lane of travel.

Richard Hermance, an accident reconstructionist, provided expert testimony on behalf of defendant. Relying primarily on the state police diagram, Hermance attempted to calculate the speed of the vehicles; although he conceded that the speed was irrelevant because the Dodge did not have time to react to the Nissan and the Nissan did not exceed the speed limit. Based upon the statement of eyewitness Jill Dunlop that the Nissan never turned, combined with the area of impact, Hermance concluded that the Nissan crossed the double yellow line before entering the intersection.

Hermance testified that an obscured stop sign which was not visible until a distance of 110 feet, without the aid of a stop-ahead sign, would certainly be a contributing cause of the accident. However, Hermance maintained that the stop-ahead sign was visible and should have alerted the Nissan driver to anticipate the stop sign. Thus, she should have slowed down in anticipation of the impending stop sign. Here, however, there was no evidence that the Nissan driver ever attempted to stop.

William Fitzpatrick, who had been employed by the DOT for 35 years before retiring in 2004, testified as a fact witness for claimants and was offered as an expert in highway safety by defendant. Beginning in 1972, Fitzpatrick was involved in traffic and engineering safety in Region 8, which covered the area of the accident. He was promoted to Assistant Regional Traffic Engineer in the early 1990's culminating in his appointment as Regional Traffic Engineer in approximately 1996 or 1997. His responsibilities included overseeing the design units and construction of new projects.

In preparation for his expert testimony on behalf of defendant, Fitzpatrick made several field visits to the site and reviewed documents relating to the construction and history of the road. Fitzpatrick also attempted to determine the speed and trajectory of the Nissan. Looking at the scuff marks on the pavement at the point of impact, he also contended that the driver of the Nissan had to have crossed the double yellow line and not altered her driving for the curvature of the road. He explained that if she had stayed in her lane, then there would have been yaw marks as she went through the final curve and the point of impact would have been farther north. He discounted Dunlop's observations by concluding that from her vantage point, it could have appeared otherwise. The Nissan driver's failure to stay in her lane was evidence of her state of distraction while driving.

According to Fitzpatrick, there were multiple signs indicating an intersection ahead and the Nissan driver did not heed any of them. He maintained that the signage was properly placed in accordance with the standards set forth in the Manual on Uniform Traffic Controls and that the driver of the Nissan incurred cognitive distraction and that her "mind was somewhere else" (T:1938). He explained that while 55 mph was a statutorily acceptable speed, a driver would necessarily alter that speed to the roadway conditions as presented, such as curvature or weather related conditions. It appeared to Fitzpatrick that the Nissan driver had violated the center line of the roadway, had not lowered her speed for the curvature of the road and had not perceived any of the indications that she was approaching an intersection.

He explained that while the end of County Route 90 sign and Route 82 sign with the double-headed arrow were not warning signs in their own right, taken in context at this location, they provided information to a driver that an intersection will be encountered (T:1985). According to Fitzpatrick, the signs convey that County Route 90 is ending and will be intersecting with Route 82 perpendicular to the path traveled by the Nissan driver (T:1941).

Fitzpatrick further testified that the stop-ahead sign was posted because, due to the curve in the road, the stop sign was not visible (T:1942). He testified that the stop-ahead sign is placed so that "as you pass that sign, as you see that sign, to have the ability to start to decelerate, and to decelerate softly and gradually, so you can stop at the stop sign" (T:1947). He emphasized that the sign is posted at a position where you are to heed its warning "as you pass it" (T:1948). Fitzpatrick explained that the stop-ahead sign is not designed to be perceived in advance of its posted position because a driver's line of site cannot be guaranteed, such as when a driver is traveling behind a box truck. In such a case, the driver behind the truck will not see the stop-ahead sign until the truck passes the sign. The State considers this scenario when determining where to locate the stop-ahead sign. Fitzpatrick further stated that if the sign is perceived in advance of passing it, that is excellent, but it is not designed to be perceived in advance (T:1950-1951). The stop-ahead sign is designed to be perceived by a driver as the sign is passed and "immediate adherence to what the sign is telling you, in this case, a stop ahead," is expected (T:1951). When confronted with the opinion of Mr. Widas, claimants' expert, that a driver did not have to do anything in response to a stop-ahead sign, Fitzpatrick responded, then Mr. Widas "would fail his exam as a traffic engineer, because you are immediately supposed to decelerate" (id.). A stop-ahead sign tells a driver that you have a period of seconds before you will encounter a stop condition; thus, the driver must decelerate.

At this location there was a stop-ahead sign, a stop sign and approximately 30 feet beyond the stop sign, a white stop line pavement marking. Beyond the stop line, there was another approximately 12 feet before reaching the edge of the pavement at State Route 82. Fitzpatrick concluded that the inability to see the stop sign would not have prevented a motorist from stopping before entering State Route 82, even if the driver had missed the first three signs (T:1973). Fitzpatrick emphasized that the Nissan driver had passed the first three signs and the stop sign, which according to police was visible at a distance of 110 feet, and there was no physical evidence of any reaction on the part of the driver to slow down or brake. Thus, he concluded that "the degree of distraction . . . had to be severe" (T:1974). He stated that at 110 feet from the stop sign "[y]ou slam your brakes on, do something" (T:1986). Fitzpatrick considered the possible explanation that the driver had made the 3:37 telephone call, lasting two to three minutes, to her mother's cell phone to arrange for pickup at the Fountains. Fitzpatrick allotted a short amount of time for the two passengers to get into the Nissan and for a brief delay between the accident's occurrence and the 911 call at 3:45:53. He then considered the possible three mile or more route traveled from the Fountains to the intersection and concluded that it was not feasible or plausible that the telephone call was made prior to embarking on County Route 90 (T:1981-1984).

Analysis

While the State concedes its responsibility to maintain the visibility of the signs posted on County Route 90 because the road intersects with State Route 82 (see Vehicle and Traffic Law §§ 1621, 1681), the State does not concede any liability for the accident.

Upon consideration of all the evidence, including listening to the witnesses testify and observing their demeanor as they did so, The Court makes the following findings. The State, while acknowledging its duty to maintain the visibility of the signs posted on County Route 90 and the risk posed by a failure to satisfy such duty, nonetheless, breached the duty owed to the traveling public. Indeed, DOT's Resident Engineer, Michael Temple, testified that there was a need for more frequent inspections for obscured signs during the recurrent growing season of late May through September [*8]because vegetation grows and it is more likely that signs would be obscured later in the season (T:1107-1108). Despite this recognized need, Temple did not take adequate steps to insure that this need was met. Rather, instead of specifically assigning his crew to a regulated schedule for sign inspections, which would enable a review of whether and when such inspections had occurred, Temple had his crew inspect signs on an "irregular basis" (T:1090). This meant, according to Temple, that signs were inspected in conjunction with the crews' other assigned duties. For example, when assigned to mowing, the crew would observe the signs en route to and while working at an assigned work site. The State's irregular manner of inspection made a review of DOT records inconclusive as to whether the State had endeavored to inspect the signs for obstructions by foliage.

Temple also stated that sign inspections were performed by DOT employees who traveled the State roadways; however Temple conceded that he does not travel the roads, such as County Route 90, which intersect with the State roadways. He stated, "[i]t's not common that I go onto the intersecting roads, because there's hundreds of them" (T:1095). Thus, the Court finds that, while the State acknowledged its duty to maintain and inspect the signs posted on county roads which intersect with State roads, such as County Route 90, the State failed to present any evidence that it satisfied that duty.

The Court further finds that the sum of the credible evidence leads to the reasonable inference that the State had constructive notice of the potential danger posed by the overgrowth of foliage on County Route 90 and yet failed to address it in a timely manner. In particular, the Court relied upon the testimony of a disinterested witness, Rebecca Lancaster, Temple's express awareness that a sign would become obscured later in the growing season, and the photographs in evidence depicting the foliage along County Route 90. While the State expressly acknowledged the need for more frequent inspections during the growing season, it failed to implement a reasonable plan for addressing this risk. Thus, the very risk perceived by the State was a cause of the accident that occurred due to the State's negligence. The State's breach, however, was not the sole proximate cause of the accident.

The Court finds that the evidence supports a finding that the driver of the Nissan was also negligent in her manner of driving and that her negligence was also a cause of the accident. Specifically, the Court finds that the driver of the Nissan failed to adjust her driving in accordance to the readily observable conditions as evidenced by her failure to decelerate or attempt to bring her vehicle to a stop after passing the stop-ahead sign, the stop sign, or the white stripe across her lane of travel before entering the intersection with State Route 82 (see Cajas-Romero v Ward, 106 AD3d 850, 851 [2d Dept 2013] ["(d)rivers have a duty to see what should be seen and to exercise reasonable care under the circumstances to avoid an accident"]; D'Onofrio-Ruden v Town of Hempstead, 29 AD3d 512 [2d Dept 2006] [even fully crediting testimony that stop sign was obscured by foliage, the driver was also negligent in her failure to see that which should have been seen through a proper use of her senses.]). There was no evidence to support a finding of negligence attributable to the driver of the Dodge.

Accordingly, the Court apportions liability 55 percent attributable to the driver of the Nissan and 45 percent attributable to the State. A trial on the issue of damages will be held as soon as practicable.

LET INTERLOCUTORY JUDGMENTS BE ENTERED ACCORDINGLY.

White Plains, New York

July 1, 2015

TERRY JANE RUDERMAN
Acting Judge of the Court of Claims

Footnotes


Footnote 1:The Court has, sua sponte, amended the caption to reflect the only proper party defendant.

Footnote 2:The Court has, sua sponte, amended the caption to reflect the only proper party defendant.

Footnote 3:The Court has, sua sponte, amended the caption to reflect the only proper party defendant.

Footnote 4:County Route 90 is also known as Camby Road.

Footnote 5:The parties agreed that they would not seek to use the testimony of the child and that no adverse inference would be drawn from the failure to produce him.

Footnote 6:The evidence established that at 3:37 p.m., two calls were made from the Nissan driver's cell phone. The first call was billed as lasting one minute. An employee from the telephone company testified that a call has a minimal charge of one minute such as when a call goes directly to voice mail (T:1540-1541). The second call made at 3:37 p.m. was billed as lasting from two minutes and one second to three minutes (T:1539). Both calls were made from the Nissan driver's cell phone to her mother's cell phone. According to the testimony of the telephone company employee, the origination and destination denoted on the bill reflected the cell tower used and was not conclusive as to the location of the cell phones (T:1544-1547).

Footnote 7:References to the trial transcript are preceded by the letter "T."

Footnote 8:Claimants argued in their post-trial memorandum at page 25 that the telephone call made from the Nissan driver's cell phone had ended "nearly ten minutes" prior to the 911 call made at "3:49:53." However, at the Court's request for clarification, claimants conceded that they had made an error in their representations and that the 911 call was made at 3:45:53 (Claimants' letter). Thus, the 3:37 telephone call had ended closer to six minutes prior to the 911 call.

Footnote 9:The Court did not find defendant's arguments to be persuasive regarding the purported inconsistencies in the investigative report and the conclusions drawn by the state police.

Footnote 10:Widas also opined that, based upon a Google Earth photograph taken prior to the accident (Ex. YY), the stop-ahead sign had insufficient reflectivity. The validity of this conclusion is questionable and, given that the accident occurred during daylight, it was not established to be a relevant factor.