Friedman v. State
| Decision Date | 01 May 1986 |
| Parties | , 493 N.E.2d 893, 58 A.L.R.4th 543 Dena FRIEDMAN, Respondent, v. STATE of New York, Appellant. Connie F. CATALDO, Appellant, v. NEW YORK STATE THRUWAY AUTHORITY, Respondent. Ernest MULLER et al., Appellants, v. STATE of New York et al., Respondents. |
| Court | New York Court of Appeals Court of Appeals |
In each of these personal injury actions arising out of "crossover" accidents occurring on highways constructed and maintained by the State of New York in which a vehicle crossed the median dividing opposing lanes of traffic, a common issue is presented: whether the State breached its duty to alleviate a known hazardous highway condition. The alleged negligence in each case was the State's failure to install median barriers at the accident site. The facts in each case are as follows.
On March 15, 1978, at about 5:00 p.m., claimant Dena Friedman was driving in an easterly direction across the Roslyn Viaduct, an elevated portion of Northern Boulevard (State Route 25A) located in Nassau County. The viaduct had two lanes of traffic in each direction separated by a median traffic divider that was 8 inches high and 46 inches wide. While Friedman was in the left lane next to the median, her car was struck by a vehicle that cut her off while attempting to pass. The collision caused Friedman's car to swerve to the left and cross the median. As it continued across the two westbound lanes, the car was struck in the side by a westbound vehicle and hit a 21-inch-high pedestrian curb the angled top of which acted as a ramp, propelling the car over the 3-foot-wide walkway and a 39-inch guardrail into a 50-foot-deep ravine.
Friedman suffered severe personal injuries. She commenced this action against the State charging the State's negligent failure to install a median barrier and safe guardrails on the viaduct.
Following trial, the Court of Claims found that as early as February 1973 the New York State Department of Transportation's (DOT) Traffic and Safety Division (Region 10) had recognized, based on a proliferation of crossover accidents, two of which involved fatalities, that a median barrier was necessary on the viaduct. From that point on, DOT's employees, including safety, maintenance, traffic and design engineers, submitted numerous requests and recommendations that median barriers be installed.
A DOT "Project Proposal and Evaluation" dated August 2, 1974 estimated that a general rehabilitative project on the viaduct, including grading, paving, drainage, lighting and installation of concrete median barriers, could be completed in 18 months. The State's expert testified that if the project had been a priority, construction could have been started within three or four years. The expert conceded that temporary barriers could have been installed in the interim.
Nevertheless, at the time of the accident in 1978, construction on the proposed viaduct project had not yet begun and temporary barriers had not been installed. Two factors put forth by the State at trial as contributing to the delay were (1) that the project's scope and cost had been expanded repeatedly to encompass many additional items including repairs to bridge abutments and approach pavement, a variety of cleaning, painting and resurfacing jobs on the viaduct, and repairs on a 1 1/2 mile stretch of Northern Boulevard and a Long Island Railroad Bridge, and (2) that a request for funding submitted to DOT's Capital Project Section by Region 10 had been rejected because of inadequate documentation.
The State's expert also testified that the project had not been given priority because a greater number of fatal accidents had been occurring on the entire length of several major highways in Nassau and Suffolk Counties than on the 2,000-foot Roslyn Viaduct. No evidence was adduced, however, as to the number of crossover accidents on those highways or whether a large proportion of the accidents had been occurring on relatively short stretches thereof. Nor was any evidence proffered as to other projects that had been given priority over the Roslyn Viaduct project.
The Court of Claims determined that the State and claimant each were 50% liable for claimant's injuries, and ordered a trial to assess damages. The court rejected the State's governmental immunity argument, which was based on its assertion that it had, in good faith, set priorities for the use of available funds, holding that the evidence did not establish that priorities had ever been set.
On cross appeals, the Appellate Division affirmed, 111 A.D.2d 921, 491 N.Y.S.2d 188, the interlocuto judgment. The court held that the governmental immunity doctrine enunciated in Weiss v. Fote, 7 N.Y.2d 579, 200 N.Y.S.2d 409, 167 N.E.2d 63, was inapplicable since the State's own experts had recommended that barriers be installed immediately on the viaduct and the State failed to show that the delay in remedying the known hazardous condition resulted from a discretionary decision concerning funding priorities (111 A.D.2d 921, 491 N.Y.S.2d 188). The appeal is now before this court on a certified question of law.
Cataldo v New York State Thruway Auth.
At 3:30 p.m. on January 26, 1973, Connie Flachs Cataldo was traveling west across the Tappan Zee Bridge. The bridge, which was opened in 1955 as part of the New York State Thruway, spans the Hudson River between Nyack in Rockland County and Tarrytown in Westchester County. It is approximately 3 miles long and consists of two 37-foot-wide roadways in each direction separated by a raised 10-foot-wide median with a sloped 3-inch curb. Each roadway carries three lanes of traffic with no shoulder area.
The bridge can be divided roughly into three sections. From its west abutment it runs in a curve for approximately 3,100 feet. A straight, or tangent, section then stretches for approximately two miles. The span again curves at its east end. When it was constructed, the bridge contained no median barriers. In 1962, however, a 27-inch-high corrugated metal beam median barrier was installed along the curve at the west end.
On the day in question, Cataldo was driving on the westbound roadway, along the tangent portion of the bridge, in the lane next to the median. She collided with a vehicle that suddenly crossed the median from the easterly roadway. Cataldo suffered devastating personal injuries. She brought this negligence action against the New York State Thruway Authority (the Authority) based in part on its failure to place median barriers on the tangent section of the bridge.
The idea of installing median barriers on the Tappan Zee Bridge is not one that had escaped study by the Authority. Its first review of this issue took place in February 1962 following the occurrence of nine crossover accidents, and several fatalities, in the time since the bridge was put into service. A staff report presented to the Authority's Director of Traffic noted that under certain circumstances a median barrier could be a valuable safety device. The report cautioned, however, that while barriers eliminate most crossover accidents, they tend to increase other types of accidents because they often bounce cars back into the flow of traffic, causing rear end and "pile on" collisions when traffic is heavy in one direction. The report also raised the specter that the median would be lost as a refuge for disabled vehicles and as an access route for emergency vehicles.
A second report submitted to the Director of Traffic in July 1962 by a traffic and safety engineer also questioned the over-all effectiveness of median barriers on the bridge, but concluded that barriers should be installed on the west curve, which had a high concentration of crossover accidents. The recommendation with respect to the west curve was approved by the Authority chairman and the Thruway Authority Board in October 1962 and the barrier was installed.
No further comprehensive study of the barrier question was undertaken until July 1972 when the Director of Traffic appointed John Manning, one of the Authority's Traffic and Safety engineers, to report on the desirability of installing barriers on the entire length of the bridge. Manning's report acknowledged that crossover accidents on the west curve had been virtually eliminated since installation of a barrier. The report, however, reiterated the fears expressed 10 years earlier that a barrier would increase one-way accidents involving cars that were bounced back into traffic as well as rear end collisions resulting from disabled cars that would have to remain in the traffic lanes because of the loss of the median as a refuge. The report rated the feasibility and drawbacks of several approaches, including the installation of immovable barriers on either the east curve of the bridge or the entire length of the bridge as well as the placement of movable barriers that would allow for optimum traffic control. With respect to installing an immobile barrier on the tangent section, the report was not optimistic, noting that a tow truck would probably have to be stationed permanently at one end of the bridge to ensure adequate removal of disabled cars. The idea of movable barriers, the report stated, would probably require considerable study and...
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