Wingerter v. State

• Decision Date: 31 December 1980
• Docket Number: No. 54724,54724
• Parties: Betty WINGERTER, as Administratrix of the Estate of Peter P. Wingerter, Deceased, Respondent-Appellant, v. STATE of New York, Appellant-Respondent. (Claim)
• Court: New York Supreme Court — Appellate Division

Page 157

435 N.Y.S.2d 157

79 A.D.2d 817

Betty WINGERTER, as Administratrix of the Estate of Peter P Wingerter, Deceased, Respondent-Appellant, v. STATE of New York, Appellant-Respondent. (Claim No. 54724.)

Supreme Court, Appellate Division, Third Department.

Dec. 31, 1980.

Robert Abrams, Atty. Gen. (Henderson G. Riggs, Asst. Atty. Gen., of counsel), for appellant-respondent.

Hurwitz & Fine, Buffalo (Sheldon Hurwitz, Buffalo, of counsel), for respondent-appellant.

Before MAHONEY, P. J., and GREENBLOTT, MAIN, MIKOLL and HERLIHY, JJ.

MEMORANDUM DECISION.

Cross appeals from a judgment in favor of claimant, entered December 13, 1978, upon a decision of the Court of Claims.

At approximately 7:00 A.M. on March 13, 1970, one Peter Wingerter, age 44, was killed when the tractor-trailer he was driving left the paved portion of New York State Route 17 in Wurtsboro, New York, and plummeted down a 60-foot embankment striking a tree. Route 17 is a four-lane limited access highway with a grass mall separating the east and westbound lanes, and it was concededly wet and slushy when the mishap occurred. Just prior to the accident, decedent had proceeded down a relatively straight 5% grade for two miles, and he was in the process of passing through two curves to the right, the first of which had a radius of 4,000 feet with a highway distance of 688 feet and the second of which was much sharper and had a radius of 2,000 feet with a highway distance of 2,053 feet. In this second curve, at a point 600 feet before the site of the accident, there was located a 65-mile-per-hour maximum speed limit sign.

The present action was commenced by decedent's widow who is the administratrix of his estate, and she alleged that her husband's untimely death was caused by the negligence of the State in designing, constructing and maintaining the portion of Route 17 involved in the accident and in failing to adequately warn users of the highway of its dangers. Following a trial, the Court of Claims ultimately concluded that decedent's death was caused by the negligence of the State, and claimant was granted a judgment in the sum of $250,000. Both parties now appeal.

Upon our examination of the record, we find that it clearly supports the trial court's conclusions regarding the negligence of the State, and in so ruling, we would initially note that the State is concededly duty bound to construct and maintain its highways in a reasonably safe condition (Highway Law, § 12) and to warn users of its highways of existing hazards Hicks v. State of New York, 4 N.Y.2d 1, 171 N.Y.S.2d 827, 148 N.E.2d 885. Applying these settled principles to the case at hand, we find ample evidence that the section of Route 17 at issue lacked sufficient superelevation or banking and that it also lacked a spiral or transition curve leading into the sharp 2,000-foot radius curve. These conditions plainly did not meet the 1954 standards of the American Association of State Highway Officials, and even if we assume, as argued by the State, that these standards are inapplicable here, the conditions likewise did not meet the State's own design standards. Additionally, there was evidence that the subject highway surface had dips and bumps which tended to cause the wheels of vehicles to leave the road surface and, therefore, reduce the friction of the vehicles' wheels against the highway, and the court properly ruled that the State was negligent in failing to improve the riding surface, particularly when it had ample notice of the numerous skidding accidents which had occurred at the site in question. The court was also fully justified in finding the signing of the area inadequate and misleading in that the presence of the 65-mile-per-hour speed limit sign and the absence of a "slippery when wet" sign in an area which the State itself had designated as "out of control" because of its numerous accidents would obviously create a false sense of security in drivers travelling the highway (cf. Fisher v. State of New York, App.Div., 433 N.Y.S.2d 280; Brock v. State of New York, 58 A.D.2d 715, 396 N.Y.S.2d 282).

The State's negligence having thus been established, nothing further has been presented which would warrant our disturbance of the court's additional findings that decedent was free from contributory negligence and that the State's negligence was the proximate cause of the accident. In a wrongful death action, the State has the burden of proving contributory negligence (EPTL 5-4.2; Court of Claims Act, § 9, subd. 9), and it has failed to produce any evidence suggesting negligence on the part of decedent. As for the issue of proximate cause, the evidence must be viewed in a light most favorable to claimant Wragge v. Lizza Asphalt Constr. Co., 17 N.Y.2d 313, 270 N.Y.S.2d 616, 217 N.E.2d 666 who is held to a lower degree of proof in a death action Noseworthy v. City of New York, 298 N.Y. 76, 80 N.E.2d 744, and under the circumstances presented here a verdict in favor of claimant was certainly proper cf. Fisher v. State of New York, supra; Brock v. State of New York, supra.

Lastly, we turn to claimant's contention that her ultimate award was inadequate, and on this question we agree that the court's determination cannot be permitted to stand. At the time of his death, decedent was married and the devoted father of three dependent children, a 16-year-old daughter and twin daughters 12 years of age. Moreover, he had a life expectancy of 31.47 years and a work life expectancy of 20 years with projected earnings during this period of approximately $1,000,000. Consideration of these factors alone conclusively establishes the inadequacy of the $250,000 award, and, consequently, this case must be remitted to the Court of Claims for a new trial solely on the question of damages unless the State consents to an award in favor of claimant in the amount of $500,000.

Judgment modified, on the law and the facts, and a new trial ordered as to the issue of damages only, unless, within 20 days after service of a copy of the order to be entered hereon, the State shall consent to a judgment in favor of claimant in the amount of $500,000, in which event, the judgment, as so modified, is affirmed, with costs to claimant.

MAHONEY, P. J., and GREENBLOTT, MAIN and MIKOLL, JJ., concur.

HERLIHY, J., dissents and votes to reverse in the following memorandum.

HERLIHY, Justice (dissenting).

The accident in question occurred on March 13, 1970 at about 7:00 A.M. on Route 17, also known as the Quickway. The road was constructed in the 1950's and was a multiple-lane highway, two lanes going east and three lanes going west separated by a grass mall. The accident happened on that part of the highway which goes through the Catskill Mountains and the decedent's vehicle was proceeding in an easterly direction and descending a long winding hill and curve.

The Court of Claims found, inter alia, that at the time of the accident the decedent was operating his tractor-trailer between 25-30 miles an hour and that the surface of the eastbound lane over which the vehicle was traveling was covered by 3-4 inches of wet slush which had previously been salted and sanded. It is also undisputed that the decedent was making the trip in company with another tractor-trailer operated by a fellow employee and which was the lead vehicle travelling approximately 40-45 miles per hour. There was testimony as to the tire tracks indicating the movement of the decedent's vehicle prior to leaving the highway. The decedent was familiar with the road, having traversed it on numerous occasions.

Mr. Holmes, the driver of the other tractor-trailer, testified that he and the decedent stopped at...