Lindquist v. Cnty. of Schoharie

• Decision Date: 05 March 2015
• Docket Number: 519071
• Citation: 2015 N.Y. Slip Op. 01852,126 A.D.3d 1096,4 N.Y.S.3d 708
• Parties: Tabetha A. LINDQUIST et al., Appellants, v. COUNTY OF SCHOHARIE, Respondent.
• Court: New York Supreme Court — Appellate Division

126 A.D.3d 1096

4 N.Y.S.3d 708

2015 N.Y. Slip Op. 01852

Tabetha A. LINDQUIST et al., Appellants

v.COUNTY OF SCHOHARIE, Respondent.

519071

Supreme Court, Appellate Division, Third Department, New York.

March 5, 2015.

Tabner, Ryan & Keniry, LLP, Albany (Brian M. Quinn of counsel), for appellants.

Murphy, Burns, Barber & Murphy, LLP, Albany (James J. Burns of counsel), for respondent.

Before: PETERS, P.J., McCARTHY, GARRY and ROSE, JJ.

Opinion

GARRY, J.

Appeal from an order of the Supreme Court (Devine, J.), entered February 25, 2014 in Schoharie County, which granted defendant's motion for summary judgment dismissing the complaint.

Plaintiff Tabetha A. Lindquist (hereinafter plaintiff) was seriously injured while driving on North Harpersfield Road in the Town of Jefferson, Schoharie County, when her vehicle left the road on a curve, traveled down an embankment, and struck a tree. Plaintiff and her husband, derivatively, filed a timely notice of claim alleging that the accident was caused by defendant's negligence in maintaining, repairing and designing the road. Thereafter, they commenced this negligence action. Following discovery and the filing of a note of issue, defendant moved for summary judgment dismissing the complaint. Supreme Court granted the motion, finding that plaintiffs had abandoned their claim for negligent maintenance and repair and had failed to plead a cause of action for negligent highway design in the complaint or to amend the complaint to include such a claim. Plaintiffs appeal, contending that Supreme Court improperly dismissed the negligent highway design claim, and asserting that it was properly pleaded in their complaint.¹

The complaint contains a single negligence cause of action that, in addition to allegations pertaining to negligent maintenance and repair, claims that defendant “caused, created and maintained” a defective and unsafe condition on the road. Plaintiffs assert that this language is sufficient to provide adequate notice of their negligent highway design claim, and that their notice of claim and bill of particulars provide additional notice by specifying that defendant, among other things, failed to provide adequate signs and warning devices, a guide rail or other barrier, and a sufficiently wide shoulder. Regardless of the merit of these claims, they are premised on standards applicable to motions to dismiss pursuant to CPLR 3211(a)(7). Here, a different analysis is required, as defendant moved for summary judgment pursuant to CPLR 3212 on the ground that plaintiffs' complaint failed to state a cause of action for negligent highway design. This application by its nature is not addressed solely to the pleadings, and to treat it as such is in error. Upon a motion premised upon this provision, “failure to state a ... cause of action in pleadings would not be sufficient to permit unconditional summary judgment in favor of [a] defendant, as a matter of law, if [the] plaintiff's submissions provided evidentiary facts making out a cause of action” (Alvord & Swift v. Muller Constr. Co., 46 N.Y.2d 276, 280, 413 N.Y.S.2d 309, 385 N.E.2d 1238 [1978] ; see Reiser, Inc. v. Roberts Real Estate, 292 A.D.2d 726, 727, 739 N.Y.S.2d 753 [2002] ; Mega Group v. Halton, 290 A.D.2d 673, 675, 736 N.Y.S.2d 444 [2002] ; Canonico v. Hayes, 127 A.D.2d 911, 913, 512 N.Y.S.2d 271 [1987] ).

In this unusual procedural setting, defendant was not required to meet the customary burden of establishing a prima facie right to judgment as a matter of law on the substantive merits of the negligent highway design claim. Defendant met its burden on its procedural claim, which was addressed to the pleadings and not to the merits, by identifying a defect in plaintiffs' complaint, and in this manner triggered plaintiffs' obligation to reveal an evidentiary basis in its submissions that was sufficient to “ present [ ] facts curing the defect or supplying the deficiency” (Weinstein–Korn–Miller, N.Y. Civ. Prac. ¶ 3212.10 [2d ed. 2014] ). In this case, plaintiffs were thus required to establish a factual basis upon which a jury could find in their favor on a claim for negligent highway design.

“Municipalities owe a nondelegable duty to the public to construct and maintain their roads in a reasonably safe condition” (Temple v. Chenango County, 228 A.D.2d 938, 938, 644 N.Y.S.2d 587 [1996] [citations omitted]; accord Madden v. Town of Greene, 64 A.D.3d 1117, 1119, 883 N.Y.S.2d 392 [2009] ). While this duty includes providing adequate warning signs and guide rails or other barriers in appropriate circumstances, a municipality will not be held liable for a breach of duty unless the breach proximately caused the accident (see Ferguson v. Sheahan, 71 A.D.3d 1207, 1208, 896 N.Y.S.2d 245 [2010] ; Sherman v. County of Cortland, 18 A.D.3d 908, 910, 795 N.Y.S.2d 121 [2005], lv. denied 5 N.Y.3d 713, 806 N.Y.S.2d 164, 840 N.E.2d 133 [2005] ). Accordingly, to establish a cause of action for negligent highway design, plaintiffs were required to provide evidentiary facts that could support a finding that defendant breached its duty to maintain the road in a reasonably safe condition, and that this breach was a proximate cause of the accident.

Plaintiff, who suffered a traumatic brain injury, has no memory of the accident and does not know why her car left the road, other than her entirely speculative testimony that she might have been “reaching around to check on my kids, you know, when it was happening.”² Plaintiff's two children were the only passengers in the vehicle, and they likewise do not remember the accident. There were no other witnesses. Plaintiffs therefore rely primarily upon the affidavit of their expert, Michael D. Reilly II, an engineering consultant specializing in highway and traffic matters and accident reconstruction. Reilly, who based his opinions on a site visit and document review, stated that plaintiff was traveling around a curve to the left when, for unknown reasons, her car departed from the road on the right side, crossed an open shoulder or clear zone that was approximately 18.5 feet wide and then traveled over the edge of an embankment beyond the clear zone, coming to rest against a tree. Reilly opined that the posted speed limit was too high for the road, that signs warning motorists of the curve and advisory signs indicating a lower speed should have been posted, that a guide rail should have been installed to prevent vehicles that left the roadway from traveling across the clear zone and over the edge of the embankment, and that the clear zone itself was too narrow. Finally, he opined that these alleged defects in the design of the highway were a substantial factor in causing the accident and/or aggravating the severity of plaintiff's injuries.

As to the absence of a guide rail, Reilly opined that “recognized standards” and “good and common engineering and road design [principles]” required guide rails at the accident site to redirect vehicles onto the roadway and shield them from the embankment and from trees. He further opined that given the steepness of the embankment, plaintiff's injuries would have been less severe had such guide rails been in place. He did not specify the particular standards on which he relied, nor did he indicate when they became effective (see Donato v. County of Schenectady, 156 A.D.2d 859, 862, 550 N.Y.S.2d 83 [1989] ). Moreover, Reilly did not address the fact that the embankment and trees were not located directly beside the roadway, but were instead separated from the edge of the road by an open, level clear zone measuring almost 20 feet wide, beyond stating in conclusory fashion that the clear zone was “too narrow” (compare Ferguson v. Sheahan, 71 A.D.3d at 1209–1210, 896 N.Y.S.2d 245 ; Popolizio v. County of Schenectady, 62 A.D.3d 1181, 1182, 879 N.Y.S.2d 616 [2009] ; Temple v. Chenango County, 228 A.D.2d at 939–940, 644 N.Y.S.2d 587 ). Notably, a photograph of the scene taken shortly after the accident appears to show plaintiff's tire tracks leading directly from the road across the clear zone and over the embankment, with no indication of any attempt to turn, brake or otherwise utilize the clear zone. Reilly neither contended that plaintiff tried to utilize the clear zone nor supported his opinion that the clear zone was inadequate by referencing any applicable standards or regulations. Further, he did not provide facts or data pertaining to the nature of the curve or the dynamics of plaintiff's accident indicating that the clear zone provided such inadequate protection that a guide rail was required. He did not opine that any standards requiring a wider clear zone were in effect when the road was constructed or that any major reconstruction project had taken place since its construction that would require compliance with new standards (see Hay v. State of New York, 60 A.D.3d 1190, 1191–1192, 875 N.Y.S.2d 313 [2009] ; see also Madden v. Town of Greene, 64 A.D.3d at 1119–1120, 883 N.Y.S.2d 392 ). Finally, although Reilly's affidavit stated, upon...