Lake v. State
| Decision Date | 25 September 2015 |
| Docket Number | No. 118699.,118699. |
| Citation | 61 N.Y.S.3d 191 (Table) |
| Parties | William J. LAKE, v. The STATE of New York. |
| Court | New York Court of Claims |
Law Office of James A. Fauci, PLLC, By: Law Offices of Steven P. Shultz, By: Steven P. Shultz, Esq., By: Hinman, Howard & Kattell, LLP, By: Linda B. Johnson, Esq., for Claimant's.
Eric T. Schneiderman, NYS Attorney General, By: Joan Matalavage, Assistant Attorney General, Of Counsel, for Defendant's.
Claimant, William J. Lake, commenced this action for the intentional and/or negligent construction, repair, maintenance and design of New York State Alternate Route 7 (Alternate Route 7) in the Town of Colonie in Albany County, New York.1 Claimant argues that defendant is liable for the negligent highway design of Alternate Route 7, and that the study defendant conducted to determine whether an increase to 65 mph on Alternate Route 7, was inadequate. Claimant also argues that defendant failed to monitor its decision to raise the speed limit. Sovereign and governmental immunity, as well as comparative negligence, were included among defendant's many alleged affirmative defenses. In addition, defendant moved to amend its answer during trial to include an affirmative defense that this claim is covered by General Obligations Law section 15–108. The Court granted that motion at trial (T: 153). For the reasons set forth below, the Court concludes that defendant is immune from liability for the design of Alternate Route 7 and for the study to raise the speed limit to 65 mph, under the broad governmental immunity common law of Weiss v. Fote, 7 N.Y.2d 579, 200 N.Y.S.2d 409, 167 N.E.2d 63 (1960). The Court further concludes that while defendant failed to monitor the safety effects of the speed limit increase on Alternate Route 7 after its implementation, there can be no liability for the same because claimant failed to prove that such failure was the proximate cause of the accident.
On Friday, May 28, 2010, at approximately 8:30 a.m., claimant was riding his 2009 Harley Street Glide motorcycle to work westbound on Alternate Route 7. Westbound Alternate Route 7 is a three lane highway with two traffic lanes and a climbing lane (T: 114). Alternate Route 7 runs approximately 3.5 miles from State Route 787(787) to the Northway. Claimant intended to take Alternate Route 7 to the Northway toward Saratoga County. Claimant maintains that he had been riding on a motorcycle since he was eight years old.2 He testified that he has traveled all over the country by motorcycle.
Once on Alternate Route 7, claimant eventually made his way to the right-hand lane where he was proceeding at a speed between 55–65 mph. As a normal practice he tried to keep two seconds of distance, or two hundred feet, between his motorcycle and the vehicle in front of him. When he moved to the right-hand lane, a white Ford pickup truck was in front of him, which decreased claimant's view of the lane. Suddenly, the driver of the white Ford pickup truck slammed on his brakes and the rear end of the truck lifted off the ground. Then the white Ford pickup truck moved immediately into the middle lane. Claimant was aware that a guardrail was to his right and that a black vehicle was now to his left, behind the white Ford pickup truck. The white Ford pickup truck cut off the black vehicle causing the black vehicle to move toward claimant in the right lane. This chain reaction caused claimant to move to the right side of his lane and he "throttled up", or sped up, because the car on his left would have hit him and he wanted to avoid the white truck that had slammed on its brakes (T: 43, 56). He noticed at this point that a Mercury Sports Utility Vehicle (Mariner) was stopped on the right shoulder and part of that vehicle protruded into the right lane. He downshifted and grabbed his brakes. His options at that point were: getting hit by the vehicle in the middle lane that was moving towards his lane; drive into the guardrail; lay the bike down and slide into the vehicle in front of him; or shoot for a three foot space that he perceived to the left of the Mariner stopped in front of him on the shoulder. He chose the latter option but, unfortunately, he missed the perceived space and struck the left back of the Mariner near mile post marker 1.6 (Exhibits 1, 2, 5, E). He estimated that three-quarters of the Mercury SUV, which was eight feet wide, was in the right lane. He claimed that it did not have its flashers engaged.
Defendant subpoenaed Jean Clukey, the driver of the Mariner stopped on Alternate Route 7 in front of claimant. Ms. Clukey testified that on the morning of May 28, 2010, she left her home in Watervliet and headed to 787 where she exited onto Alternate Route 7, intending to take that highway to the Northway. She remained in the right-hand lane on Alternate Route 7, driving 55 mph. She recalled that there was a sign on the highway that indicated slower traffic should keep right (Exhibit J). As she proceeded up the hill in the right-hand lane, her vehicle suddenly lost power, her battery light came on, and she coasted to the shoulder of the road, such that her vehicle was between six to eight inches from the guardrail. She put her flashers on. There was a grassy wooded area to the right of the guardrail. Because she left her cell phone at home, she exited her vehicle to wave down cars for assistance. A woman stopped her vehicle approximately 100 feet in front of Ms. Clukey's vehicle. Ms. Clukey walked up the hill toward the other vehicle and spoke with the woman who had called the police. While Ms. Clukey was heading back to her vehicle, she noticed that her flashers were still engaged. Claimant's collision with her vehicle occurred as she proceeded back to her vehicle.
Mark Kennedy is the current Region 1 Traffic Engineer at DOT.3 Although he was not involved in the study that led to the increased speed limit on Alternate Route 7, he provided background. Specifically, he testified that Alternate Route 7 has five 12–foot wide lanes, two travel lanes eastbound going downhill, two travel lanes westbound going uphill, along with a westbound right-hand lane for slow moving vehicles (climbing lane) (Exhibit 43, p. 38). There are two sources of information that tell a motorist the right-hand lane is for slow moving vehicles: two skip lines adjacent to one another (Exhibits K, L) and a couple of signs that warn for slow-moving vehicles (Exhibit J). The right-hand lane was designed for slow moving vehicles (Exhibit 43, p. 40). He noted that there is a place along the climbing lane where the paving markings change from a double skip line, indicating that it is a climbing lane, to a solid line or a solid line with a skip line adjacent to it, which indicates that it is an exit lane only. There is an overhead sign that indicates that it is an exit lane only, too (Exhibit 43, p. 83). When Alternate Route 7 was designed, the standard width for a shoulder next to a climbing lane was four feet (Exhibit 43, p. 43). The standard width for a shoulder built in 2003 was eight feet (Exhibit 43, p. 76). The standards for the design and construction of climbing lanes and shoulders are contained within the New York State Highway Design Manual (HDM) which generally follows the American Association of State Highway and Transportation Officials Standards (AASHTO). In Mr. Kennedy's experience, the typical time to consider widening a shoulder is when repairs are completed on the highway, although it would require a significant capital investment (Exhibit 43, p. 48). Between the opening of Alternate Route 7 and 2004, there were repairs to the concrete pavement (Exhibit 43, pp. 47–48). Mr. Kennedy testified that once a speed limit is raised, it is not typical to analyze whether an increase in accidents or fatalities had occurred (Exhibit 43, p. 67).
In addition, Mr. Kennedy testified that the sound barrier noise wall on the right-hand side on westbound Alternate 7 was part of the original construction. While it is located on land owned by New York State, Mr. Kennedy had no knowledge how the exact location of the barrier was determined or how far north of the barrier that land is owned by the State. He noted two facts that could prohibit the widening of the shoulder: (1) there is a concrete gutter behind the guide rail; and (2) the noise wall needs to be outside the deflection distance of the guide rail.4
Bruce Smith was the Director of Traffic and Safety Division at DOT, and his office developed the "65 MPH Speed Limit Candidate Worksheet". Although he did not testify at trial, Exhibit 18, a memorandum he wrote to all Regional Traffic Engineers, was received into evidence. It stated:
(Exhibit 18).
David Woodin, the Director of Traffic Operation at DOT, testified that when the speed limit study was undertaken for Alternate Route 7, the size of the shoulder was only indirectly considered because the highway was built to interstate standards. He was not aware of any consideration to the width of the shoulder when the speed limit increase was considered. Although he was not a design engineer, he created the candidate worksheet with input from his superiors. He testified that after the speed limit was raised, accident data was collected and analyzed, and for a time there was a consideration to lower the speed limit (Exhibit 45, pp. 31–33).
Reed Sholtes is a licensed professional engineer in New York and has worked at the New York State Department of Transportation for 25 years. He is presently the Supervisor of Traffic Operations Section for Region 1. Part of his responsibilities is to conduct speed limit studies. He...
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