Stuart-Bullock v. State, STUART-BULLOCK

• Decision Date: 15 December 1971
• Docket Number: No. 48922,STUART-BULLOCK,48922
• Citation: 38 A.D.2d 626,326 N.Y.S.2d 909
• Parties: Irene Smyth, as Administratrix of the Estate of Patricia Jill Stuart-Bullock, Deceased, Respondent, v. STATE of New York, Appellant. Claim
• Court: New York Supreme Court — Appellate Division

Page 909

326 N.Y.S.2d 909

38 A.D.2d 626

Irene Smyth STUART-BULLOCK, as Administratrix of the Estate

of Patricia Jill Stuart-Bullock, Deceased, Respondent, v. STATE of New York, Appellant.

Claim No. 48922.

Supreme Court, Appellate Division, Third Department.

Dec. 15, 1971.

Joseph J. Einhorn, New York City, for respondent.

Louis J. Lefkowitz, Atty. Gen. (Jeremiah Jochnowitz, Albany, of counsel), for appellant.

Before REYNOLDS, J.P., and STALEY, GREENBLOTT, COOKE and SIMONS, JJ.

MEMORANDUM DECISION.

Appeal from a judgment in favor of claimant, entered May 19, 1970, upon a decision of the Court of Claims.

This case arises out of a fatal automobile accident at Milepost 10.4 east on the Cross-Westchester Expressway, also known as Route 287, on August 26, 1967, at about 3:00 P.M. The two east and two westbound lanes of the expressway were separated by a mall 20 1/2 feet in width (four foot blacktop strips on each side of a grass center 12 1/2 feet in width); no barrier separated the eastbound and westbound traffic. It had been raining and the road was wet. Trooper Finnan, who arrived at the scene about 20 minutes after the occurrence of the accident (no eye witness testified), observed tire marks on the mall showing that decedent's car (a 1963 Volkswagen sedan) was proceeding easterly when it left the expressway and crossed the mall. After crossing the mall decedent's car struck a car in the westbound lane head-on, continued, and struck guardrails on the north shoulder of the exit ramp to Route 95 south. Claimant's expert testified that curbing, which should have been present, was not; that there should have been a guardrail in the mall separating east and westbound traffic; that the curve signs were inadequate as it was an abnormal curve (4 1/2 ); and that the directional signs were misleading. The court below found that the State was negligent 'in the design, construction, maintenance, repair and operation of Route 287' and that the decedent's death was caused by such negligence. More specifically, it found: (1) that no other car forced decedent's car off the road, but rather that the car was forced to leave the eastbound lane and cross the median 'after the wheels of her car became engaged in the ruts adjoining the left eastbound lane which had no curbing' and that this defect was one of the defects which caused decedent's death; (2) that another defect, 'which was alone sufficient to render the State culpable', was the absence of a median barrier; and (3) that in view of the 'complex and dangerous condition' in the area the State did not adequately discharge its duty to post signs to give drivers adequate warning of the 'hazardous conditions' in that: (a) the State did not adequately discharge its duty of providing reduce speed signs in the immediate vicinity of the accident and in the required reasonable distance before it; (b) the signs present did not give adequate and timely warning of the 'dangerous curve'; and (c) the directional signs were inadequate and were so confusing and contradictory 'as to create a peril in and by themselves'. Appellant contends, as its first point, that claimant failed to establish that the death of Patricia Jill Stuart-Bullock was caused by the negligence of the State in the design, construction, maintenance and operation of the Cross-Westchester Expressway. We agree. The trial court's determination cannot, for a variety of reasons, be affirmed.

Although there was testimony that there was no curbing on the left eastbound lane, the record contains no evidence that there were ruts presents which could have caused the decedent's car to veer off the road and into the westbound traffic. Thus, the trial court engaged in pure speculation in so concluding. This is clearly insufficient to support an award (see Frohm v. State of New York, 34 A.D.2d 724, 311 N.Y.S.2d 754, affd. 28 N.Y.2d 703, 320 N.Y.S.2d 750, 269 N.E.2d 409). Where there are several possible causes of an accident, for one or more of which a defendant is not responsible, a plaintiff cannot recover without proving that the injury was sustained wholly or in part by a cause for which the defendant was responsible (Ruback v. McCleary, Wallin & Crouse, 220 N.Y. 188, 195, 115 N.E. 449, 451; Frohm v. State of New York, Supra; Maislin Bros. Transport, Ltd. v. State of New York, 15 A.D.2d 853, 224 N.Y.S.2d 753). Such was the situation here, and the record is devoid of any proof that the accident was caused...