Schroeder v. State

• Decision Date: 08 December 2016
• Parties: Mark SCHROEDER, et al., Appellants, v. STATE of New York, Respondent.
• Court: New York Supreme Court — Appellate Division

145 A.D.3d 1204
43 N.Y.S.3d 558
2016 N.Y. Slip Op. 08263

Mark SCHROEDER, et al., Appellants,
v.
STATE of New York, Respondent.

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

Dec. 8, 2016.

43 N.Y.S.3d 560

Mark Lewis Schulman, Monticello, for appellants.

Eric T. Schneiderman, Attorney General, Albany (Brian D. Ginsberg of counsel), for respondent.

Before: McCARTHY, J.P., EGAN JR., LYNCH, CLARK and AARONS, JJ.

LYNCH, J.

145 A.D.3d 1204

Appeal from a judgment of the Court of Claims (Schaewe, J.), entered April 10, 2014, upon a decision of the court following a bifurcated trial in favor of defendant on the issue of liability.

Claimant, who was a member of a volunteer ambulance company, was injured on October 18, 2000 when the ambulance in which he was a passenger hit a stone wall located along the westbound shoulder of State Route 17B in the Town of Delaware, Sullivan County. Following a two day bench trial in January 2014 limited to the issue of liability, the Court of Claims dismissed the claim, finding that defendant's failure to install a guide rail was not a proximate cause of the injury and that, in any event, defendant was entitled to qualified immunity. Claimant appeals.

Defendant's duty to maintain roads in a reasonably safe condition includes the installation of guide rails when necessary (see Friedman v. State of New York, 67 N.Y.2d 271, 283, 502 N.Y.S.2d 669, 493 N.E.2d 893 [1986] ; Hill v. Town of Reading, 18 A.D.3d 913, 915–916, 795 N.Y.S.2d 126 [2005] ; Lattanzi v. State of New York, 74 A.D.2d 378, 379, 428 N.Y.S.2d 331 [1980], affd. 53 N.Y.2d 1045, 442 N.Y.S.2d 499, 425 N.E.2d 887 [1981] ). With respect to highway safety and design, defendant is "accorded a qualified immunity from liability arising out of a highway planning decision" (Friedman v. State of New York, 67 N.Y.2d at 283, 502 N.Y.S.2d 669, 493 N.E.2d 893 ; see Evans v. State of New York, 130 A.D.3d 1352, 1353, 14 N.Y.S.3d 226 [2015], lv. denied 26 N.Y.3d 910, 2015 WL 6457230 [2015] ; Frechette v. State of New York, 129 A.D.3d 1409, 1413, 13 N.Y.S.3d 266 [2015] ). "Under this doctrine of qualified immunity, a governmental body may be held liable when its study of a traffic condition is plainly inadequate or there is no reasonable basis for its traffic plan" (Friedman v. State of New York, 67 N.Y.2d at 284, 502 N.Y.S.2d 669, 493 N.E.2d 893 ).

At the time of the accident, the ambulance was proceeding westerly on Route 17B. The stone wall in question, which has been in place since the late 1800s, runs parallel along a curved portion of Route 17B for approximately 110 feet. From the vantage point of claimant's vehicle, the wall included an opening for a concrete staircase about 40 feet west of where the

145 A.D.3d 1205

wall began. The record shows that the ambulance drifted to the right and impacted the wall on two occasions. There is no real dispute that, during the first impact, the passenger side of the ambulance glanced against the wall breaking the mirror. Shortly thereafter, there was a second impact in the area of the stairs, the nature of which is at issue. Claimant maintains that there was an abrupt impact with the concrete stairs that caused the ambulance to stop, tossing him across the interior of the ambulance box, or back of the ambulance, causing injury. Defendant maintains that the second impact was also of a glancing nature.

Claimant essentially contends that defendant was negligent in failing to take corrective measures to alleviate the dangerous

43 N.Y.S.3d 561

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