Friedman v. State

• Decision Date: 24 June 1985
• Citation: 491 N.Y.S.2d 188,111 A.D.2d 921
• Parties: In the Matter of Dena FRIEDMAN, Respondent-Appellant, v. The STATE of New York, Appellant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 188

491 N.Y.S.2d 188

111 A.D.2d 921

In the Matter of Dena FRIEDMAN, Respondent-Appellant, v. The STATE of New York, Appellant-Respondent.

Supreme Court, Appellate Division,

Second Department.

June 24, 1985.

Robert Abrams, Atty. Gen., Albany (Peter J. Dooley and Michael S. Buskus, Albany, of counsel), for appellant-respondent.

Lipsig, Sullivan & Liapakis, P.C., New York City (Pamela Anagnos Liapakis, Frank V. Floriani and Christopher T. McGrath, New York City, of counsel), for respondent-appellant.

Before LAZER, J.P., and O'CONNOR, WEINSTEIN and LAWRENCE, JJ.

MEMORANDUM BY THE COURT.

In a claim to recover damages for personal injuries, the State of New York appeals from an interlocutory judgment of the Court of Claims, dated March 10, 1983, which determined that the State is 50% liable for claimant's injuries and ordered the claim returned to the trial calendar for the assessment of damages, and claimant cross-appeals from so much of the interlocutory judgment as found her 50% liable for her injuries.

Interlocutory judgment affirmed, without costs or disbursements.

The claim is for recovery of damages from the State for serious injuries sustained by the claimant as the result of an accident on the Roslyn Viaduct, which is a part of the State highway system. At about 5:00 P.M. on March 15, 1978, claimant, then an 18-year-old high school senior, was driving eastward over the viaduct on her way to a part-time job. While she was traveling in the left lane, a car overtook her from the rear, passed her on the right, and then cut back in front of her vehicle in such a way that the left rear of the passing vehicle struck the front right of claimant's car. As a result of this collision, claimant's car swerved to the left and crossed over the eight-inch high, approximately four-foot wide central median dividing eastbound from westbound traffic. Despite claimant's attempts to control the vehicle, it began to cut across the two lanes of westbound traffic and was struck on the side by another vehicle which was traveling in a westerly direction. Following the second collision, claimant's car continued on across the westbound lanes and struck a 21-inch high pedestrian curb at the northern edge of the roadway. The angled top section of the curb acted as a ramp and caused claimant's vehicle to vault both the three-foot wide pedestrian walkway and the 39-inch high guardrail on its far side without contacting the rail and to fall some 50 feet into the ravine below. The instant claim is premised on the State's failure to install a center median barrier and to replace the pedestrian curb with a structure which would more effectively redirect vehicles back onto the roadway.

That the absence of a median barrier created a hazardous condition on the viaduct was recognized by the regional office of the Department of Transportation as early as February of 1973, more than five years prior to claimant's accident. Indeed, the record is replete with urgent recommendations by various of defendant's employees that barriers be installed as quickly as possible. At trial, the State's own expert conceded that such a project could have gone to construction within three to four years, and that a temporary barrier could have been erected in the interim. As it was, however, the project was repeatedly expanded to include a variety of other work on the viaduct and the adjoining roadway. Thus, the project was still in the design and planning stage at the time of claimant's accident over five years later. Following a trial on the issue of liability only, the Court of Claims found that the State was 50% liable and claimant was 50% liable for her injuries. Both sides now appeal. There should be an affirmance.

Initially, the State contends that it is insulated from liability in the instant case by the rule that a governmental body may not be held liable for injuries arising from the operation of a reasonable highway safety plan (see, Weiss v. Fote, 7 N.Y.2d 579, 200 N.Y.S.2d 409, 167 N.E.2d 63; Schwartz v. New York State Thruway Auth., 61 N.Y.2d 955, 475 N.Y.S.2d 271, 463 N.E.2d 612; Muller v. State of New York, 108 A.D.2d 181, 488 N.Y.S.2d 751). Our examination of the record, however, makes it apparent that this doctrine is inapplicable to the instant claim. This is simply not a case in which the State relied on its experts in establishing a reasonable safety plan. Rather, the State's own experts repeatedly recommended that median barriers be installed immediately (cf. Muller v. State of New York, supra ). Nor has the State shown that its delay in repairing the hazardous condition was due to a discretionary decision concerning funding priorities which might, in a proper case, preclude the imposition of liability upon the State (see, Tomassi v. Town of Union, 46 N.Y.2d 91, 412 N.Y.S.2d 842, 385 N.E.2d 581; Puliatti v. State of New York, 91 A.D.2d...