New York State Court of Claims

New York State Court of Claims
DEYOE v. STATE OF NEW YORK, # 2019-053-007, Claim No. 124703

Synopsis

After a bifurcated trial on the issue of liability, the Court found that claimant failed to establish by a preponderance of the credible evidence that there was either an unusual number of accidents that occurred at the subject intersection subsequent to the removal of a crosswalk or that the failure to reinstall a crosswalk prior to claimant's accident created a hazardous or dangerous condition.  Existing record plans did not include a crosswalk at that location and this was an act involving judgment or discretion in planning and design of a highway for which the State is accorded a qualified immunity.

Case information

UID: 2019-053-007
Claimant(s): DAVID DEYOE
Claimant short name: DEYOE
Footnote (claimant name) :
Defendant(s): STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 124703
Motion number(s):
Cross-motion number(s):
Judge: J. DAVID SAMPSON
Claimant's attorney: BROWN CHIARI, LLP
BY: David W. Olson, Esq.
Defendant's attorney: HON. LETITIA JAMES
New York State Attorney General
BY: Michael T. Feeley, Esq.
Assistant Attorney General
Third-party defendant's attorney:
Signature date: May 15, 2019
City: Buffalo
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

On April 25, 2013 at approximately 12:33 p.m., claimant David Deyoe was crossing South Union Street (South Union) at the south side of its intersection with Irving Street (Irving) in the City of Olean, New York when he was struck by a motor vehicle traveling southbound on South Union operated by Theodore Gundlah. South Union is also known as Route 16 and is a state highway. A claim was filed on July 18, 2014 alleging that the State was negligent by failing to properly design, construct and maintain South Union in the area of the accident and by failing to, among other allegations, provide crosswalks and/or signage in the area of the incident to provide adequate protection for pedestrians at this intersection; and failing to conduct proper and adequate studies of the area. On August 11, 2014, an answer was filed denying the allegations in the claim.

The trial of this claim was bifurcated and addressed the issue of liability only. The trial was held in Buffalo on November 26, 27, 28 and 30, 2018 and December 6, 2018. During the trial, testimony was provided by claimant David Deyoe; Thomas Vesotski, the manager of Ried's Food Barn in Olean; Thomas Windus, the Director of Public Works for the City of Olean; Thomas S. Messana, New York State Department of Transportation (DOT) regional traffic engineer; Angelo Borgese, DOT regional materials engineer; Jordan Anthony Bailey, DOT assistant engineer; James J. Kolkowski, a City of Olean Police Officer, and expert witnesses Nicholas Bellizzi for claimant and David R. Christopher for the State. Following the trial, the parties requested and were granted until March 15, 2019 to prepare and submit post-trial memoranda.

TESTIMONY OF DAVID DEYOE

At the time of the incident, claimant was living with his mother and father in the City of Olean. He testified that he would purchase groceries two or three times per week from Ried's Food Barn, to which he walked the same route each way following Irving and crossing at its intersection with South Union (TT: 10-12)(1) . Claimant stated that he followed this practice for a four or five year period prior to the incident and during that time a crosswalk existed at the intersection of Irving with South Union. On the day of his accident, claimant safely crossed South Union, purchased one bag of groceries from Ried's Food Barn and began his walk home. He testified that he looked both ways before crossing South Union at Irving and did not see any motor vehicle traffic. All that he recalls of the incident is that as he crossed South Union and neared the sidewalk at Irving, he felt a car striking his right lower leg. Utilizing photo Exhibit 4, claimant identified where he believed that he was struck by the motor vehicle. He testified that he did not see the vehicle before he was struck. The next thing he recalled was lying on the grass at the corner of Irving (TT: 13-16).

On cross-examination, claimant was shown photo Exhibit 2, which depicts the intersection of South Union and Irving, and testified that the crosswalk was on the north side of the intersection. He then testified that when he crossed South Union from Irving, he would always cross on the south side of that intersection. He then agreed that the absence of a crosswalk on the north side of the intersection did not have anything to do with his accident because he crossed at the south side of the intersection. Claimant marked photo Exhibit 3 with an "x" for the location of where he had crossed South Union, which again was on the south side of the intersection at Irving (the "subject intersection"). Claimant further testified that the place that he marked with an "x" on photo Exhibit 4 was also on the south side of the subject intersection (TT: 21-26). Claimant testified that he was also aware that there was an intersection and crosswalk with a traffic signal directly across from Ried's Food Barn at South Union and Green Streets but that he did not use that intersection and always crossed at the south side of the subject intersection. When shown photo Exhibit 17, claimant again stated that he did not use the crosswalk on the north side of the subject intersection and always crossed South Union at the south side (TT: 26-30).

On redirect examination, claimant was asked a series of questions by his attorney and my observations were that he became noticeably more confused with each question. It began when he was asked if he knew whether the crosswalk at South Union prior to the accident was on the north or south side of the intersection at Irving and his response to that question was that he did not know. But when directly asked by his attorney if he used the crosswalk on the north side of the South Union and Irving intersection prior to the accident, he responded "no, I didn't" and stated that he crossed at the south side of the intersection. Claimant's attorney then asked if it was possible that he would have used the crosswalk on the north side of Irving before the date of the accident, to which claimant responded, "it's possible." Pursuing this answer further, claimant's attorney then asked whether he used the crosswalk every time before the date of the accident and he responded that he did not, only most of the time. The final question asked of claimant was whether there was a crosswalk present at the subject intersection on the day of the accident and his response then was "I'm not sure" (TT: 31-38).

TESTIMONY OF THOMAS VESOTSKI

Thomas Vesotski is the store manager of Ried's Food Barn, which is located at the intersection of South Union and Green Streets in the City of Olean. Vesotski testified that the store has existed at this location since 1977 and is a busy store with a customer volume of 11,000 people per week. At the time of the claimant's accident, there was a limousine company located directly next door and apartments. He stated that it was an area with a lot of pedestrian traffic. Vesotski testified that the crosswalk at the subject intersection had been there since at least 1999 (TT: 50-54). Vesotski recalled the repaving project along South Union in 2012 and testified that the subject crosswalk was removed during the course of this project. He testified that he called the City of Olean to request that the crosswalk be restored after he became aware of a pedestrian who was struck by a motor vehicle while attempting to cross the subject intersection after the repaving job was complete. Vesotski testified that he subsequently became aware of claimant's accident through the local newspaper. He also testified that a second pedestrian was hit at the subject intersection prior to claimant's accident. Subsequent to claimant's accident, Vesotski telephoned DOT and sent a letter to State Senator Catharine Young (TT: 54-59). On cross-examination, Vesotski agreed that customers could utilize the crosswalk at the intersection of South Union and Green Streets (TT: 63-64).

TESTIMONY OF THOMAS WINDUS

At the time of claimant's accident, Thomas Windus was the director of public works for the City of Olean, a position he started in 2004 (TT: 66-67). In this position, he was in charge of streets, parks, airport, electricians, engineers, water and sewer. He testified that his responsibilities included oversight of the Olean Streets Department, determining what streets would be repaved and what work would be done within the city's right-of-way (TT: 69-70). Windus testified that he first became aware that the subject crosswalk had been removed either from a constituent or from his supervisor of general operations. He stated that the absence of the crosswalk came up during the course of one of their bi-weekly supervisors meetings. Windus testified that they believed that the crosswalk at the subject intersection should be replaced after the paving work was complete (TT: 67-68). He stated that even though this intersection did not have a traffic signal, because there was a bus stop and Ried's Food Barn on that side of South Union, a lot of people utilized the crosswalk in that area.

As a result, Windus testified that he wrote DOT (Exhibit 9) on September 14, 2012, requesting that the crosswalk be reinstalled. In addition, he testified that someone in his office spoke to Mr. Bailey in the DOT Buffalo office and that Bailey had indicated that it could not be reinstalled without pedestrian signage. Windus stated that he wanted to arrange to have the appropriate signage and crosswalk reinstalled (TT: 69-71). He testified that he sent a second letter to DOT on February 20, 2013 (Exhibit 13), six days following a fatal accident where a pedestrian was struck while crossing the subject intersection and asked the State to make it a priority to reinstall the crosswalk. Windus acknowledged the responding letter from Thomas Messana at DOT in which he was advised that DOT was "still trying to determine the final scope of work for this project based on exising priorities and the level of available funding" and that Messana indicated that "we will give this location every consideration for inclusion in this project and we will notify you when this determination has been made." Windus testified that he did not believe that his concerns about reinstalling the crosswalk were being adequately addressed because nothing was being done (TT: 77-79).

On cross-examination, Windus testified that he was aware that the Manual of Uniform Traffic Control Devices (MUTCD) required signage for a pedestrian crosswalk at an intersection without any traffic control device (TT: 85). Windus also testified that if in response to his letters the DOT had bid a contract to install a crosswalk, pedestrian signs and ADA compliant ramps to the sidewalk, that it was unlikely this work would have been completed prior to May 1, 2013 (TT: 95-96). On redirect examination, Windus stated that he did not believe this to be an emergency situation that would require it to be addressed more quickly (TT: 96-97).

TESTIMONY OF THOMAS MESSANA

Thomas Messana recently retired from DOT and was previously a regional traffic engineer from 2007 through 2018. His territory included the City of Olean. Messana testified that he was aware that the subject crosswalk was in existence at the time of the repaving contract for South Union and that it was removed during the course of that project. He testified that the September 14, 2012 letter from Mr. Windus(2) was DOT's first notification that the subject crosswalk was used frequently by the public (TT: 107-112). Messana testified that in response to this letter, a DOT employee was sent to look at the intersection and report back. He stated that this individual reported that it was not possible to reinstall a crosswalk because of the lack of ADA compliant sidewalk ramps and that crosswalks already existed with traffic control devices one block away in both directions.(3) Messana testified that no study was conducted to determine whether the absence of a crosswalk at the subject intersection created a danger to pedestrians (TT: 114-117).

Messana testified that he first learned that there had been a pedestrian fatality on South Union in the second letter from the City of Olean received in February 2013. In response, he sent Craig Walek to specifically look at whether there was anything DOT could do to make that intersection safer and stated that they were planning to put in a crosswalk once the ADA compliant ramps were installed (TT: 117-118). He testified that there was a change in the DOT policy concerning crosswalks in 2013, which would then permit them to install a crosswalk before ADA curb ramps were constructed (TT: 128-129).

On cross-examination, Messana testified that prior to DOT's receipt of the September 12, 2012 letter from the City of Olean, he was aware of a policy followed by DOT's Traffic Operations Bureau which required ADA compliant ramps to be installed prior to installation of a crosswalk and that without ADA compliant ramps, a crosswalk could not be installed. Messana stated that this was the policy at the time that the letter from the City of Olean was received requesting that the State reinstall the crosswalk at the subject intersection (TT: 165-170). He testified that the 1997 record plans were developed over a 24 to 36 month time period and are intended to be a deliberate highway planning decision.(4) He further stated that these were the only record plans in existence and available to indicate where striping was to be performed at the subject intersection. Messana confirmed that the record plans did not include a crosswalk at Irving. As such, he testified that following the repaving project in 2012, the State installed striping and crosswalks consistent with the record plans. Messana testified that the significance of the absence of a crosswalk at Irving in the record plans is that this determination was made as a result of a deliberate decision making process by DOT. Finally, he stated that the markings at the subject intersection after the completion of the repaving process were the same as depicted in the 1997 record plans (TT: 161-166).(5)

Messana testified that after the September 2012 letter was received, he asked Angelo Borgese, DOT regional operations engineer to assist him and together they prepared the November 2, 2012 response letter to Mr. Windus (TT: 170-172).(6) Messana testified that DOT maintains a list of areas where accidents are more frequent that is known as the high accident location list, which is updated annually. He testified that prior to the date of claimant's accident, the intersection of South Union and Irving was listed in the bottom two-thirds of that list. Messana testified that the significance of the top third of the list is that these are the areas that DOT targets safety funds to each year for remediation. As such, the subject intersection was not a targeted area as of the time of the claimant's accident (TT: 172-175). Messana also testified that there was no accident history at South Union and Irving prior to February 2013 that indicated that this intersection should be on the targeted area list for remediation. He testified that the email from Senator Young's office(7) that described claimant's accident was their first notification of a second accident. Messana testified that two accidents occurring at an intersection within several months is an unusual occurrence that would raise concern. However, prior to the date of claimant's accident there had only been one pedestrian accident. He testified that one pedestrian accident, even if a fatality, is unfortunately not sufficient to place that intersection on the targeted area list for remediation. Messana testified that each year there are between 1,500 and 2,000 pedestrian accidents in DOT Region 5 (TT: 175-178).

Messana testified that before sending out the November 2012 letter to Mr. Windus,(8) he and Mr. Borgese discussed the location of crosswalks with traffic control devices on South Union north and south of Irving and whether it would be appropriate to add a crosswalk without an intersection or stop sign. He stated that their decision to add a crosswalk was based upon their understanding of the MUTCD and the ADA and that a crosswalk with pedestrian signs would fit at this location based upon its prior existence for a number of years and the presence of pedestrian attractors. Messana stated that it was their intention to restore this crosswalk during the 2013 construction season (TT: 179-180). He testified that DOT does not typically affix crosswalk markings, paint or preformed crosswalks after October and prior to May as the pavement temperature needs to be at 55 degrees or higher and the ambient air temperature must be 55 degrees and rising (TT: 184-185). Finally, Messana stated that when he sent out the letter in November 2012, he knew that Mr. Bailey had reviewed the 1997 record plans and utilized them to lay out restriping of South Union during the repaving project. Between 1997 and 2012, he stated that DOT did not receive any complaints that any part of the 1997 record plans were a deviation from the Highway Design Manual or the MUTCD (TT: 186-187).

Messana prepared a second letter to Mr. Windus in March 2013(9) , which he testified represented his engineering decision concerning the issue of adding a crosswalk at the Irving intersection. In that letter, he stated that DOT was reviewing whether to add the installation of ADA curb ramps to the upcoming project, as well as the final scope of work for this project based upon available funding. Messana testified that it was his intention to install the ADA curb ramps and a crosswalk on the north side of Irving Street (TT: 188-189).

On redirect, Messana testified that it would not have been appropriate to utilize a stand-by contractor to install the curb ramps and crosswalk because that contract work is reserved solely for emergency situations, such as when a road is washed out or damaged and needs to be restored (TT: 191-192). He testified that when DOT received the first letter from the City of Olean in September 2012, he sent someone from DOT to that intersection to determine the feasibility or appropriateness of reinstalling the crosswalk, found that it did not have ADA curb ramps or any pedestrian signs but that DOT would look to reestablish the crosswalk once the proper curb ramps were installed (TT: 196-197).

TESTIMONY OF ANGELO BORGESE

Angelo Borgese is a regional materials engineer working for DOT in the construction division. He testified that he has worked at DOT for the past 20 years and at the time of the subject accident was the regional traffic operations engineer. In that position, Borgese was responsible for conducting traffic engineering studies for matters brought to DOT's attention by members of the general public (TT: 211-212). Borgese indicated that the September 2012 letter from the City of Olean was directed to his attention. He testified that he followed DOT's standard procedure, which is to assign an employee to go out and conduct a field visit. In this instance, he assigned part to Craig Walek and part to Jordan Bailey. Borgese testified that the assigned employees would determine the applicable standards in the MUTCD and come up with a recommendation, which they would discuss with Borgese. A determination of the proper course of action would then be made and Borgese would consult with a DOT regional traffic engineer to see if they were in agreement. He testified that only then would a response letter be prepared (TT: 213-215).

Borgese identified the email prepared on September 27, 2012 by Mr. Walek(10) as his response. He testified that he agreed with Walek's findings that they would consider installing a crosswalk at this location only after ADA pedestrian ramps were installed and that if they did so, pedestrian signing would also be required as it was a non-controlled intersection. Borgese identified Mr. Bailey's report(11) that was received by him on October 1, 2012. He testified that Bailey, the regional pavement manager, had located record plans from the mid to late nineties that did not show a crosswalk existing at the subject intersection. He stated that it was Bailey's responsibility to install pavement markings on the repaving project at the subject intersection (TT: 215-218). Borgese testified that he agreed with Bailey's conclusion that a crosswalk should not be installed. He explained that their policy to require ADA compliant ramps was to insure that the crosswalk would be available to 100% of pedestrians and that this was DOT policy and it was consistent with engineering best practices, as well as Federal Highway Administration and Justice Department requirements (TT: 218-219).

Borgese identified the letter of November 2, 2012 from Mr. Messana to Mr. Windus(12) as the letter which he helped draft. He testified that its content represented his best engineering judgment concerning what should be done with respect to the subject intersection. The conclusion reached was that until ADA compliant curb ramps were placed, no crosswalk would be installed. They did, however, agree to investigate the possibility of installing curb ramps with additional signing. In addition, Borgese testified that an additional option was for the City of Olean to obtain a work permit from DOT and construct the ADA curb ramps and crosswalk themselves (TT: 220-222). Borgese identified the letter from the City of Olean dated February 20, 2013 to Mr. Messana and indicated that it was directed to him upon receipt. He testified that receipt of this letter advising of a fatality caused them to take another look at the request to install the crosswalk. Borgese stated that prior to receiving this letter, he was not aware of any accident history at this location. He testified that DOT maintains and he has access to accident data, including pedestrian accidents and that this data quantifies intersections throughout New York that have higher accident rates than the statewide average (TT: 224-225).

Borgese identified the letter dated March 11, 2013 from Mr. Messana to the City of Olean(13) , which he assisted in drafting. He testified that this letter represented his best engineering judgment and indicated that they would add the work to install ADA compliant ramps at the subject intersection and install a crosswalk with the required pedestrian warning signs (TT: 226-227). He stated that he did not receive any further inquiries regarding the subject intersection prior to April 25, 2013, the date of claimant's accident (TT: 227-228).

On cross-examination, Borgese testified that the DOT could remove any crosswalks on state roads that they did not install if the crosswalk did not meet their policy requirements (TT: 229-230). He testified that it was a very unusual circumstance to have a municipality place a crosswalk on a state road. Borgese testified that in September 2012, he did not order that a pedestrian count be taken at the subject intersection, only that they observe the subject intersection at different times of the day to determine if it was frequently used as a crossing location. He did not recall the results of these observations (TT: 232-233). Borgese testified that the field study performed also looked at potential pedestrian generators and destinations, however, he didn't have any documentation that showed what was considered (TT: 236-237). He agreed that the State was made aware that the reason the City of Olean wanted the crosswalk reinstalled was that they claimed it was used frequently (TT: 245-246). Borgese agreed that there is nothing in the MUTCD that requires curb ramps before a crosswalk is installed. However, he also added that the MUTCD does state that crosswalks should not be placed indiscriminately and only after careful review (TT: 247-248).

On redirect examination, Borgese agreed that the email received from Mr. Bailey after his site review indicated that the subject intersection did not have ADA compliant curb ramps, lacked pedestrian signage and that he had located record plans from the mid to late nineties that did not show a crosswalk installed at this location. He also reviewed those record plans(14) and confirmed that a crosswalk at this intersection did not exist (TT: 256-257).

TESTIMONY OF JORDAN BAILEY

Jordan Bailey is an assistant engineer with DOT and in the fall of 2012 he was the regional pavement marking manager for the four western counties of New York State. Bailey testified that he was involved with striping with respect to the repaving contract in 2012 affecting the subject intersection. He stated that he applied striping consistent with the 1997 record plans and aerial photos. All crosswalks that existed back in 1997 were replaced, along with two-way left turn lanes and the edge line was placed up to the intersection. Bailey acknowledged that there was a crosswalk at the subject intersection prior to the repaving job and that it was not put back in because it was not contained in the 1997 record plans (TT: 330-332).

Bailey testified that following the receipt of the September 2012 letter from the City of Olean, he performed research before it was assigned to perform a study. His research was contained in an email to his supervisor, Mr. Borgese.(15) Borgese then assigned the study to Mr. Walek. Bailey testified that he did not replace any existing crosswalks without a traffic control device, namely, the subject intersection and another at an intersection south of this location at Franchot Boulevard. In both instances, Bailey stated that these intersections did not have ADA compliant ramps or any pedestrian signage (TT: 332-335).

On cross-examination, Bailey testified that he was not asked to perform a study as that was assigned to Mr. Walek. He also stated that DOT guidelines require pedestrian signage for crosswalks at unsignalized crosswalks and was not aware that this was not a requirement in the MUTCD (TT: 338-339). Bailey testified that during the winter months, he has performed some temporary pavement markings, but only one temporary crosswalk (TT: 342-343). He stated that the seasonal guideline for DOT regarding the installation of crosswalks is that it be performed between May 15 and September 1. Bailey agreed that DOT could have added a crosswalk at the subject intersection after receiving the September 14, 2012 letter if they had determined to do so (TT: 348-350).

TESTIMONY OF JAMES J. KOLKOWSKI

Officer James Kolkowski is employed as a patrolman by the City of Olean Police Department and has been so employed for 38 years. He identified Exhibit B, a copy of the motor vehicle accident report relating to the subject accident involving claimant (TT: 452-453). Kolkowski testified that he found claimant still lying in the road when he arrived and prior to the arrival of the ambulance. He estimated that claimant was lying in the road approximately 15 to 20 feet south of the subject intersection in the southbound lane closer to the middle of the road. Kolkowski recalled that the vehicle involved in the accident had a dent above the driver's side rear tire. He also recalled speaking to the driver of the vehicle and two witnesses (TT: 456-460).

On cross-examination, Officer Kolkowski testified that he could not recall how big the dent was to the vehicle that struck claimant. He also stated that the police accident report indicating that claimant was struck by the rear of the vehicle was based upon statements made to him by the two witnesses (TT: 463-468).

DEPOSITION TESTIMONY OF WILLIAM GORTON

The transcript of William Gorton's examination before trial with redactions was received into evidence as Exhibit 23. Mr. Gorton is presently an engineering consultant and was previously employed by DOT for over 34 years. He retired from DOT in 2015 and was a regional director between 2009 and 2015 (Exh. 23 at 5-9). Gorton testified that policies did not vary by DOT region but were set as statewide DOT policies. He did not recall any specific discussions regarding a policy about the placement of crosswalks when no ADA compliant ramps were present. He did not recall any specific policy relating to the removal of a crosswalk following a repaving project. Gorton stated that the general policy was that you would replace pavement markings that existed when performing a resurfacing job. However, he testified that with the advent of the ADA and as it evolved, if there were no ADA compliant curb ramps and there were available alternatives, the pavement markings would not be replaced (Exh. 23 at 9-12). Gorton testified that around 2011, DOT policy was that ADA curb ramps were required before installing a crosswalk. He did not recall there being any subsequent change to that policy (Exh. 23 at 17-18). He did not recall ever coming into possession of DOT guidance that it would be safer for pedestrians to install crosswalks even in the absence of ADA compliant curb ramps (Exh. 23 at 22-25). Gorton's recollection was that the DOT policy throughout New York was that ADA compliant curb ramps must be present prior to installing a crosswalk (Exh. 23 at 25-26).

Gorton was asked to define what would comprise unusual circumstances that would cause DOT to install a crosswalk at a location that did not have ADA compliant ramps. His response was that some of the unusual circumstances considered would include the volume of pedestrians, the type of origin and destinations the pedestrians are going to, traffic volumes, and what traffic control devices exist at the intersection. Gorton was not familiar with the 2012 repaving project in Olean or with the subject intersection (Exh. 23 at 35-38).

EXPERT TESTIMONY BY NICHOLAS BELLIZZI

Nicholas Bellizzi is a licensed professional engineer and forensic engineer who was retained by claimant to provide expert testimony concerning crosswalks and pedestrian safety (TT: 265-266, 269-271, 272-273). Bellizzi's opinion was that the State was negligent in failing to reinstall the crosswalk at the subject intersection. He based his opinion on the fact that a crosswalk previously existed at this location and was not replaced following the repaving job. Bellizzi stated that he assumed that a traffic engineer had previously conducted a study of the intersection and had determined that a crosswalk should be placed at this location. He stated that he did not know who placed it there but that it had existed from 1999 through 2012 and there was nothing indicating that they had any problems with it (TT: 274-275).

Bellizzi was also of the opinion that the State created a dangerous condition by removing and not then replacing this crosswalk. He testified that the MUTCD states that if you are going to place a crosswalk at an uncontrolled intersection that a study should be performed which should include an examination of pedestrian volumes and pedestrian generators such as stores, housing units and bus routes. Bellizzi testified that he did not see any evidence to indicate that the State conducted a study of pedestrian generators (TT: 275-277). He was also of the opinion that a crosswalk is a safety feature, citing as evidence that it is one of several elements of pavement markings in the MUTCD. Bellizzi also opined that the State should have placed a warning sign at this location not to cross at the subject intersection and directing them to the two signaled crosswalks a block away. He also stated that it was significant that this was not a new installation and was to reinstall an existing intersection (TT: 278-279).

Bellizzi did not believe that the lack of ADA compliant ramps was a valid excuse not to reinstall the crosswalk. It was his opinion that when the City of Olean requested in September 2012 that the State reinstall the crosswalk that they should have done so. Alternatively, if they had wanted to determine if a crosswalk should be reinstalled after consideration of the criteria in the MUTCD, they should have conducted a reasonable and adequate study incorporating the various criteria he had previously cited. Bellizzi testified that the pedestrian count that was performed was not the equivalent of a study. He stated that the State should have installed the crosswalk after completion of the repaving and most certainly after the request by the City of Olean (TT: 280-282). Bellizzi also testified that he had reviewed the expert witness disclosure of David Christopher, the State's expert witness, and that none of the reasons cited by him changed his opinion that the State should have reinstalled the crosswalk (TT: 283-286). He also explained available alternatives that would permit the installation of pavement markings when the ambient temperature was below the recommended level (TT: 286-289).

During cross-examination, Bellizzi stated his belief that although the City of Olean placed the crosswalk on a state highway without permission, because it had been in existence for at least 12 years, the State could not remove it without performing a study to determine whether it was warranted in the first place (TT: 294-296). In response to his answer during direct examination that he assumed a study had been performed by the City of Olean before installation of the crosswalk at the subject intersection, he conceded that he had not been provided with any information indicating that there had been a study. He also admitted that the MUTCD requires that an engineering study be performed before a crosswalk is installed in the first instance (TT: 302-305). Bellizzi agreed that there was no crosswalk at the subject intersection in the 1997 record plans. He also agreed that the record plans showed the existence of Ried's Food Barn, Custom Car Care Sunoco, a medical building, and a church (TT: 309-311). Bellizzi acknowledged that traffic engineers notate areas where there is a high incidence of pedestrian accidents and that there was a lack of any pedestrian accidents at the subject intersection other than the fatality in February 2013 (TT: 313). He also agreed that there are intersections with traffic control devices within one block of the subject intersection and that the distance for pedestrian access to a crosswalk was in compliance with the Highway Design Manual (TT: 317-318).

On redirect examination, Bellizzi stated that it was his opinion that the ADA regulations concerning pedestrian ramps did not apply to the subject intersection and that curb ramps were not otherwise required prior to installing a crosswalk (TT: 324-328).

EXPERT TESTIMONY BY DAVID CHRISTOPHER

David Christopher was retained by the State as an expert witness for this trial. He is currently employed by Clark Patterson Engineering and was previously with DOT for 36 years. His last position with DOT was as regional design engineer in which he managed the design program for DOT Region 5 in Buffalo. In that position, he would direct the design of all State highway capital construction within Region 5, which included the design and planning of road construction plans, signage and orientation and layout of roads. Prior to this position, he was the resident engineer for North Erie County, Niagara County and South Erie County. He has been a licensed professional engineer since 1993 (TT: 368-371). Christopher testified that he was asked to determine whether the subject intersection was defective in any way as of the date of the accident and he concluded that it was not. He was of the opinion that the subject intersection without a crosswalk was in conformance with the MUTCD and Highway Design Manual, as well as good engineering practice (TT: 374-375).

Christopher testified that the subject intersection had adequate pedestrian access without a crosswalk at the subject intersection as there were crosswalks with traffic control devices about 0.4 km to the north and south of that intersection. He stated that with a repaving project, a decision to install crosswalks at DOT is part of the design process and a traffic study is required. Christopher reviewed the 1997 record plans and confirmed that there was no crosswalk planned for the subject intersection, which was an indication that DOT did not want one at this intersection (TT: 375-379). He testified that there was no evidence to indicate that DOT did not rely upon the record plans during the repaving project and that there was no change in the MUTCD or Highway Safety Manual that would have required them to change the design in the plan for the subject intersection. Christopher stated that it was a DOT policy in 2012 and 2013 to require ADA compliant ramps with the installation of a crosswalk. He opined that the striping performed on this repaving project was in conformance with the MUTCD or the Highway Design Manual (TT: 379-382).

Christopher testified that he was not aware of any accident history at the subject intersection and the request by the City of Olean in September 2012 did not allege that the intersection was dangerous. He did not believe that the City of Olean's request for the crosswalk was any indication that the intersection was not properly designed. Christopher opined that the removal of the crosswalk during the repaving project did not make the intersection dangerous or defective, nor was there any need to reinstall the crosswalk after the City had requested that it be replaced. He was also of the opinion that the State was not obligated to conduct a study prior to removing the crosswalk (TT: 382-383).

Christopher stated that in the absence of a permit, a municipality is not permitted to install signs or markings on state roads. He further stated that the State was under no obligation to retain markings or signs that it finds installed on State roads by others and it is not required to conduct a study before removing them. Christopher was also not aware of any study that was conducted prior to installing the crosswalk at the subject intersection prior to the 2012 repaving project (TT: 387-388).

On cross-examination, Christopher testified that while employed by DOT in 2012, he did not have anything to do with the decision to not reinstall the crosswalk at the subject intersection. He testified that the ADA regulation requiring curb ramps applied to the repaving project as it would have been categorized either as new construction or as an alteration. Christopher disagreed with Mr. Bellizzi and stated that the ADA regulation did not apply to this situation (TT: 391-396). He also disagreed that if there was a high pedestrian count at the subject intersection with no accident history that this demonstrated that the crosswalk was successfully protecting pedestrians. The basis for his opinion was that pedestrians could alternatively choose to go to crosswalks with traffic signals one block away in either direction. In addition, he stated that there was no record of the volume of pedestrians that utilized the crosswalk at the subject intersection before its removal (TT: 407-408). In addition, Christopher did not believe that a pedestrian volume study was warranted upon receipt of the September 14, 2012 letter from the City of Olean as the site visit revealed other factors that weighed against installing a crosswalk, namely, the close proximity of two other crosswalks, the lack of ADA compliant ramps and the lack of appropriate pedestrian signs (TT: 408-414). Christopher confirmed that he was not offering the opinion that the State could not reinstall a crosswalk at the subject intersection because it was too cold to do so after receipt of the City of Olean letter. (TT: 421-422).

LAW AND ANALYSIS

The State has a nondelegable duty to keep its roads reasonably safe (Brown v State of New York, 31 NY3d 514, 519 [2018], citing Friedman v State of New York, 67 NY2d 271, 283 [1986]). The State breaches that duty "when [it] is made aware of a dangerous highway condition and does not take action to remedy it" (Friedman, supra at 286). A breach of that duty is considered a proximate cause of claimant's injuries when it is found to have been a substantial factor (Brown, supra at 519, citing Turturro v City of New York, 28 NY3d 469, 483 [2016]).

In the field of traffic design engineering, the State is accorded a qualified immunity from liability arising out of a highway planning decision (Friedman v State of New York, supra at 283; Alexander v Eldred, 63 NY2d 460, 465-466 [1984]). Claimant does not contest that the State is entitled to the application of this doctrine. As such, the State can only be liable when it is established that its highway plan or design was adopted without adequate study or lacked a reasonable basis (see Weiss v Fote, 7 NY2d 579 [1960]; Spanbock v Trzaska, 287 AD2d 496 [2d Dept 2001], lv denied 97 NY2d 610 [2002]). It has also been held that the State will only be liable for a traffic planning decision if its study is found to be "plainly inadequate or there is no reasonable basis for its . . . plan" (Mare v City of New York, 112 AD3d 793 [2d Dept 2013], citing Affleck v Buckley, 96 NY2d 553, 556 [2001]).

The initial issue to address is whether the State's failure to reinstall the crosswalk at the subject intersection created a dangerous condition which required that it undertake a reasonable study to alleviate the danger (see Friedman, supra at 284, citing Heffler v State of New York, 96 AD2d, 926, 927 [2d Dept 1983]). The claimant has the burden to show that the State either created a dangerous condition or had actual or constructive notice of it, and failed to take reasonable measures to correct it (Warner v State of New York, UID No. 2016-053-004 [Ct Cl, Sampson, J., Jan. 27, 2017], affirmed 166 AD3d 1527 [4th Dept 2018], citing Brooks v New York State Thruway Auth., 73 AD2d 767, 768 [3d Dept 1979], affd 51 NY2d 892 [1980]). It is the claimant's burden to establish not only the number of prior accidents at the subject location but also to produce evidence that the prior accidents were of a similar nature and were caused by the same or similar contributing factors that caused the instant accident (Brown v State of New York, 79 AD3d 1579, 1583 [4th Dept 2010], citing Hough v State of New York, 203 AD2d 736, 738-739 [3d Dept 1994]).

I find that the 1997 record plans developed by the State did not include a crosswalk on South Union at Irving but did provide two alternative crosswalks one block north and south of Irving that were supported by a traffic control device and designed in compliance with the MUTCD. I find that the repaving project performed by the State in 2012 that removed the crosswalk at the subject intersection returned that intersection to the condition that then existed as originally constructed and as recorded in the 1997 record plans.(16) I also find that a crosswalk existed at the subject intersection between 1999 and 2012 and that it was most likely placed there by the City of Olean without permission from or approval by the State. There was testimony at trial by Mr. Messana, whose testimony I found credible, that the significance of the absence of the subject crosswalk in the record plans is that this determination was made as a result of a deliberate decision making process by DOT.

I find that the proof at trial established that the City of Olean first advised the State in a letter dated September 14, 2012 that "the crosswalk was not reinstalled at the Irving Street intersection" and asked that the crosswalk be reinstalled "as it is used frequently by the public."(17) Mr. Messana, who prepared the reply letter from DOT to the City of Olean, testified that when the reply letter was sent out on November 2, 2012,(18) he knew that Jordan Bailey had reviewed the 1997 record plans and utilized them to lay out restriping of South Union during the repaving project and that between 1997 and 2012, DOT had not received any complaints that any part of the 1997 record plans were a deviation from the Highway Design Manual or the MUTCD. I also find that in a letter dated February 20, 2013, the City of Olean advised the State that "[o]n February 14, 2013, there was a fatal accident where a pedestrian was hit and killed while crossing Route 16 near this intersection." In that letter they also stated that "[w]e strongly urge the State to make this a priority and have appropriate repairs done to allow the installation of this crosswalk."(19) No other evidence was presented by claimant of an accident history at the subject intersection and as the evidence of this one accident was limited to the aforementioned letter, there was no proof that this one accident was of a similar nature and caused by the same or similar contributing factors that caused the claimant's accident. Messana also testified that the subject intersection was not a targeted area for remediation as of the date of the accident as there was no accident history prior to February 2013 to indicate that this intersection should be placed on the targeted area list.

Claimant's expert, Mr. Bellizzi agreed that there was no crosswalk at the subject intersection in the 1997 record plans. However, he was of the opinion that even though the City of Olean placed the crosswalk on a state highway without permission, as it had been in existence for at least 12 years the State could not remove it without performing a study to determine whether it should remain. He also did not believe that the lack of ADA compliant ramps was a valid excuse to not reinstall the crosswalk. Bellizzi acknowledged that there was a lack of any pedestrian accidents at the subject intersection other than the fatality in February 2013 and agreed that the intersections with traffic control devices one block in either direction of the subject intersection were appropriate for pedestrian access and in compliance with the Highway Design Manual.

The State's expert witness, Mr. Christopher testified that the subject intersection had adequate pedestrian access without a crosswalk as there were crosswalks with traffic control devices about 0.4 km to the north and south of that intersection. He stated that with a repaving project, a decision to install crosswalks at DOT is part of the design process and a traffic study is required. Christopher also stated that he had reviewed the 1997 record plans and confirmed that there was no crosswalk planned for the subject intersection, an indication that DOT did not want a crosswalk at this intersection. He testified that there was no evidence to indicate that DOT did not rely upon these record plans during the repaving project and that there was no change in the MUTCD or Highway Safety Manual that would have required them to change the design in the plan for the subject intersection. He also stated that it was a DOT policy in 2012 and 2013 to require ADA compliant ramps with the installation of a crosswalk. The differing opinions of these expert witnesses does not alter the legal determination here as it has been held that "something more than a mere choice between conflicting opinions of experts is required before the State or one of its subdivisions may be charged with a failure to discharge its duty to plan highways for the safety of the traveling public" (Weiss v Fote, 7 NY2d 579, 588 [1960]).

Upon my evaluation of the exhibits and the testimony of the claimant and the other witnesses at trial, and upon observing their demeanor while testifying, I find that claimant has failed to establish that there was either an unusual number of accidents that occurred at the subject intersection subsequent to removal of the crosswalk or that a crosswalk was otherwise required to be reinstalled prior to claimant's accident so as to conclude that a hazardous or dangerous condition existed (see Marshall v State of New York, 252 AD2d 852, 853-854 [3d Dept 1998]). Furthermore, claimant cannot prevail on a claim of negligence that a dangerous condition existed in the absence of a crosswalk as the 1997 record plans did not include one at the subject intersection and this was an act involving judgment or discretion in the planning and design of a highway for which the State is accorded a qualified immunity (Tomassi v Town of Union, 46 NY2d 91, 97 [1978]). Accordingly, the Court finds that claimant did not establish by a preponderance of the evidence that a dangerous condition existed (Marshall, supra at 854; Pursel v State of New York, 226 AD2d 872 [3d Dept 1996]; Cipriano v State of New York, 171 AD2d 169 [3d Dept 1991], lv denied 79 NY2d 756 [1992]).

In the alternative, even if claimant established that the absence of the crosswalk at the subject intersection created a dangerous condition for which the State had actual or constructive notice, I find that the absence of a crosswalk was not the proximate cause of claimant's injuries. The claimant testified that he had walked to Ried's Food Barn as he had for the previous four or five years, crossing South Union at the Irving intersection. As he walked home and prepared to cross South Union back to Irving, he testified that he looked both ways and did not see any motor vehicle traffic. His only recollection of the accident was that as he neared the far side of South Union, he felt a car striking his right lower leg. During cross-examination claimant testified that he always crossed South Union at the south side of Irving, not the north side of the intersection where the crosswalk was located prior to the repaving project. Critically, he agreed on cross-examination that the absence of a crosswalk on the north side of that intersection did not have anything to do with his accident because he crossed at the south side of the intersection. On redirect, claimant was asked by his attorney if he used the crosswalk on the north side of the intersection of South Union and Irving prior to the accident and responded "no, I didn't" and stated that he crossed at the south side of the intersection. There were other questions by claimant's counsel on this issue which noticeably confused the claimant and his responses reflected this confusion. However, my observations of claimant and evaluation of his entire testimony and demeanor while doing so leads me to conclude that his answers to the questions noted above were truthful and credible. As such, I find that on the day of the incident, claimant crossed South Union at the south side of the intersection with Irving where no crosswalk ever existed and in violation of Vehicle & Traffic Law 1152 (a). Accordingly, claimant's injuries were not a proximate cause of the State's decision not to reinstall a crosswalk on the north side of the subject intersection prior to claimant's accident.

Finally, the Court reserved decision during the course of the trial on an evidentiary issue concerning the admission of an email from the Constituent Relations Manager for New York State Senator Catharine M. Young dated April 26, 2013(20) , sent one day following claimant's accident and testimony at trial concerning that email and email responses from DOT concerning the State's subsequent measure to reinstall the crosswalk at the subject intersection. The claimant contends that these emails are admissible for purposes of impeachment as one of the recognized exceptions to the inadmissibility of evidence of a subsequent remedial change. Claimant adds that this exhibit was not offered to establish the existence of either a dangerous condition or as proof of the State's "knowledge of an unsafe condition" (Alfieri v Carmelite Nursing Home, Inc., 29 Misc3d 509 [Civil Ct City of New York 2010], citing Corcoran v Village of Peekskill, 108 NY 151 [1888]). As such, claimant contends that the emails demonstrate that despite testimony to the contrary by DOT representatives, the State could have reinstalled the crosswalk at an earlier date prior to claimant's accident. The State inadvertently stipulated this exhibit into evidence at the commencement of the trial, but upon its later use by claimant's counsel during the trial, the State objected to its use and to any testimony relating thereto on the basis that this was evidence of subsequent repairs that should not be admissible in a negligence action (Klatz v Armor El. Co., 93 AD2d 633, 637 [2d Dept 1983]).

In claimant's post-trial memorandum, he emphasizes that this exhibit was introduced for the purpose of impeaching the State's testimony concerning the feasibility of reinstalling a crosswalk at an earlier date due to the absence of ADA compliant curb ramps. Claimant references the testimony of Mr. Messana, who stated that curb ramps administered within a contract would take 12 to 18 months to complete. However, as this exhibit indicates, after the Senator's office inquired following claimant's accident, the State chose to proceed and reinstall the crosswalk within a few months without first requiring the installation of ADA compliant ramps.

The general rule is that evidence of post-accident repairs or subsequent remedial measures is not admissible to establish negligence (Richardson Evidence 4-612 [Prince 11th ed.]. However, there are exceptions to that general rule, including control where that is an issue, feasibility or impeachment (Caprara v Chrysler Corp., 52 NY2d 114, 122 [1981]; Ramundo v Town of Guilderland, 142 AD2d 50 [3d Dept 1988]). Accordingly, it is the Court's determination that this exhibit is admissible, together with the witness testimony relating to it, for one limited purpose, namely, to impeach the State's testimony concerning the feasibility of reinstalling the crosswalk at an earlier date in the absence of ADA compliant curb ramps. The Court has already determined that the claimant failed to establish the existence of a dangerous condition and consideration of this exhibit does not alter that decision. Furthermore, the Court also found that claimant's injuries were not a proximate cause of the State's decision to not reinstall a crosswalk on the north side of the subject intersection prior to claimant's accident. Accordingly, this exhibit and the testimony relating to it do not alter the findings or decision of this Court.

CONCLUSION

Accordingly, by a preponderance of the credible evidence presented at the trial, the Court finds for the State and that claimant has failed to establish negligence and as such, the State is not liable for the personal injuries of claimant.

For all of the foregoing reasons, the claim of David Deyoe is hereby DISMISSED.

Any and all motions on which the Court may have previously reserved or which were not previously determined are hereby denied. All objections upon which the Court reserved determination that were not previously addressed herein, are now overruled.

The Chief Clerk is directed to enter judgment accordingly.

May 15, 2019

Buffalo, New York

J. DAVID SAMPSON

Judge of the Court of Claims


1. References to the trial transcript will be made with the designation "TT" and the page number(s).

2. Exhibit 9.

3. Exhibit 10. Mr. Messana did not recall who was sent out, however, this exhibit indicates that it was DOT employee Angelo Borgese, who in this email stated that he did not see a need for a crosswalk at the subject intersection as there was no ADA required access to the sidewalk and street and additionally, there was a traffic signal with pedestrian features and ADA access one block away in either direction from this location for pedestrians to safely cross Route 16 (South Union Street).

4. Exhibit A

5. Similarly, Messana testified that the parking lane on South Union Street and Irving was performed consistent with the 1997 record plans. The striping ended 100 feet prior to Irving in the 1997 record plans and was extended during the repaving project and he testified that this was consistent with the MUTCD (TT: 167-170).

6. Exhibit 12

7. Exhibit 16.

8. Exhibit 12.

9. Exhibit 14.

10. Exhibit 10.

11. Exhibit 11.

12. Exhibit 12.

13. Exhibit 14.

14. Exhibit A.

15. Exhibit 11.

16. Exhibit A.

17. Exhibit 9.

18. Exhibit 12.

19. Exhibit 13.

20. Exhibit 16.