After a bifurcated trial on the issue of liability, the Court found that the State had actual notice of the presence of a dangerous condition at the access road intersection where the motor vehicle accident occurred. Although the State had recommended closure of the access road three years prior to the subject accident, it failed to erect a temporary closure to remedy it until the project could be completed. The Court found that there was an unjustifiable delay by the State in implementing a remedial plan to address the safety deficiencies. Liability was apportioned 50% against the State and 50% against the claimant driver.
|Claimant(s):||LEE-ANN M. DEERING|
|Claimant short name:||DEERING|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||J. DAVID SAMPSON|
|Claimant's attorney:||WILLIAM MATTAR, P.C.
BY: Arienne J. Irving, Esq.
Charles Cobb, Esq.
|Defendant's attorney:||HON. LETITIA JAMES
New York State Attorney General
BY: Timothy J. Flynn, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||September 12, 2019|
|See also (multicaptioned case)|
On May 9, 2010, claimant Lee-Ann Deering was the owner and operator of a 2001 Pontiac sedan that was involved in a motor vehicle accident with a 2001 Chevrolet Suburban owned and operated by William J. Mackey. At the time of the accident, claimant was attempting to cross New York State Route 5 (Route 5) from the Bayview access road in the Town of Hamburg, Erie County, New York when her vehicle was struck in an eastbound lane of Route 5 by the Mackey vehicle. Tammy Huber was the sole passenger in the vehicle operated by claimant Lee-Ann Deering and died from injuries received in that accident.
On January 24, 2011, claim no 119396 was filed by claimant Michelle Deering, individually and as the administrator of the Estate of Tammy Huber alleging claims for wrongful death, conscious pain and suffering, pre-impact terror, personal injuries, pecuniary loss and economic loss sustained by the negligence of the State, the New York State Department of Transportation (DOT) and the New York State Thruway Authority. By a decision and order of the Hon. Michael E. Hudson dated August 22, 2013, Lee-Ann Deering was granted leave to late file a claim against the State of New York. On September 24, 2013, Deering filed claim no. 123256 against the State alleging negligence in failing to remedy a known risk by allowing the Bayview access road to remain open to motorists at Route 5 despite studies identifying safety risks. The State filed an answer to the Michelle Deering claim on February 22, 2011 and to the Lee-Ann Deering claim on October 30, 2013.
These two claims were joined for trial and bifurcated, addressing the issue of liability only. The trial was held in Buffalo on March 18, 19 and 20, 2019 and completed on April 1, 2019. During the course of the trial, testimony was received from Timothy G. Ellis, a former member of the Town of Hamburg Traffic Safety Advisory Board; Patricia H. Pericak, P.E., a retired DOT Traffic Safety Evaluation Engineer; Steven Walters, formerly Supervisor of the Town of Hamburg; Angelo Borgese, P.E., a DOT Regional Traffic Operations Engineer for DOT; Lieutenant Jeffrey Lavelle of the Town of Hamburg Police Department; Sanjyot Vaidya, P.E., a DOT Regional Design Engineer; and expert witness testimony from David Liske for claimant and Lawrence M. Levine, P.E. for the State. In addition, the parties stipulated into evidence the trial testimony of William J. Mackey in the Supreme Court companion action and the transcripts of the examinations before trial of Alan Taylor, a retired DOT Regional Director for DOT and James Barnack, P.E., a retired DOT engineer. Following the trial, the parties requested and were granted until June 28, 2019 to prepare and submit post-trial memoranda. Subsequent to the trial, the action involving claimant Michelle Deering, individually and as the administrator of the Estate of Tammy Huber settled. Accordingly, this decision will only address the remaining claim of Lee-Ann Deering.TESTIMONY OF TIMOTHY G. ELLIS
Timothy G. Ellis testified that he was formerly an appointed member of the Town of Hamburg Traffic Safety Advisory Board, serving from 1980 to 1983 and then again between 1988 and 2009. He held the position of traffic safety coordinator on that board between 1988 and 2009 (TT: 16-17).(1) Ellis testified that as traffic safety coordinator, he was contacted by citizens who expressed safety concerns about the intersection of Route 5 and the Bayview access road. He also testified that a community group known as the Locksley Park Taxpayers Association sent a letter expressing their concern about the safety of the Bayview access road and individual members also spoke to members of the Traffic Safety Advisory Board. Ellis stated that on October 19, 2005, he wrote a letter to Alan Taylor at DOT (Exhibit 8) requesting a study to determine the feasibility of closing the Bayview access road due to crashes in the area involving eastbound traffic on Route 5 and what he described as "close calls" in this area (TT: 17-23). Ellis testified that he was familiar with the responding letter of Alan Taylor to Steven Walters, Hamburg Town Supervisor (Exhibit 35), which detailed the results of DOT's study finding that the accident rate on Route 5 at the Bayview access road was 1.04 accidents per million vehicle miles and that the statewide average accident rate was 0.27 accidents per million vehicle miles. He was also aware that DOT had stated that they would like to pursue closure of this access road and requested a resolution from the Town of Hamburg. In furtherance of this proposal, DOT also indicated in this letter that they would like to institute a six to nine month temporary closure to review traffic patterns in that area prior to a permanent closure. Ellis testified that the closure of the Bayview access road had not taken place by the time he left the Traffic Safety Advisory Board in 2009 (TT: 24-27).
Ellis testified that the minutes of the Hamburg Town Board on March 12, 2007 reflect his report concerning the proposed closing of Bayview Road at Route 5 (Exhibit 16 at page 10). He also testified that there was discussion as reflected in the minutes of the concerns of business owners in that vicinity and that the board members were asking that the closure not take place until September 2007 so as to protect businesses in the Town of Hamburg. Ellis confirmed that the Town of Hamburg had previously passed a resolution on February 12, 2007 supporting DOT's recommendation to close the Bayview access road (TT: 29-31). Ellis testified that after concerns for the businesses in that area were related to DOT by Supervisor Walters, another letter was sent by Supervisor Walters on March 13, 2007 reflecting that the Town Board was asking that other options be considered in addition to closure of the access road. Ellis testified that he was copied on the responding letter from Alan Taylor (Exhibit 17) which stated that DOT was sensitive to the seasonal nature of the businesses in that area and would evaluate the installation of a signal light and a reduction of the speed limit as alternatives. Ellis testified that Taylor's letter also cited to the receipt of letters from the Locksley Park Taxpayers Association and the Hamburg Police Benevolent Association (Exhibit 11) that supported closure of the Bayview access road. He further testified that he reviewed a letter received from Alan Taylor to Steven Walters dated February 15, 2008 (Exhibit 1) in which Alan Taylor advised that their traffic studies had concluded that adding a signal light or reducing the speed limit in that area of Route 5 were not suitable alternatives (TT: 31-39).TESTIMONY OF PATRICIA H. PERICAK
Patricia H. Pericak testified that she was an engineer with DOT between 1984 and 2015 and for the majority of that time worked as a Traffic Safety Evaluation Engineer (TT: 66-68). In that position, she would conduct traffic safety studies and during that process create collision or accident diagrams like that depicted in Exhibit 6. This diagram included accident data on Route 5 at Bayview Road and the Bayview access road for the time period July 1995 to June 1998 (TT: 68-71). Pericak identified the work order (Exhibit 49) dated January 29, 2001 that authorized the replacement of two "no left turn" signs with larger ones on Bayview Road at the intersection with Route 5 (TT: 71-75, 77-80). Pericak testified that she was not involved in this study and that she first became involved in a traffic study of Route 5 and Bayview Road after the letter from Mr. Ellis dated October 19, 2005 was received (Exhibit 8). She testified that photo Exhibit 29 depicts Route 5 and Bayview Road as it looked in 2005. Pericak stated that Mr. Ellis was requesting a study to determine the feasibility of closing the Bayview access road, which was a state road and that if the Town had wanted to do anything concerning this access road, they would need permission from the State (TT: 80-84). She testified that a study was performed which included a collision diagram for the period June 1, 2002 to September 30, 2005 (Exhibit D). Pericak testified that accident reports are reviewed in order to create a collision diagram and then a field investigation is performed to observe how traffic typically operates in that area. Pericak testified that the study confirmed the existence of a pattern of accidents involving eastbound vehicles on Route 5 having accidents with vehicles crossing Route 5 from the Bayview access road traveling southbound on Bayview Road (TT: 84-87). She testified that the results of that study were set forth in the letter dated December 18, 2006 (Exhibit 35). Pericak testified that the results of this study detailed a total of 40 accidents during that three year time period with an accident rate of 1.04 accidents per million miles traveled (Acc/MVMT) as compared to a statewide average rate of 0.27 Acc/MVMT. She stated that although it is not required that a local municipality agree to enable the State to close a road, this letter also requested a resolution from the Town of Hamburg supporting the closure (TT: 88-93). Pericak testified that although the Town requested the closure in the first place, their approval is not required. She stated that DOT prefers to have the town and the public "onboard if we can", adding that the State will not come in and just do things without checking with the affected community (TT: 93-94).
Pericak testified that her position was that closure of the Bayview access road would improve safety to the public and that her position on this issue did not change at any point. Pericak agreed that since making a left turn onto Route 5 from Bayview Road was already illegal, the closure would only affect motorists traveling west seeking to cross Route 5 to Bayview Road. Examining the accident diagram, Exhibit 6, Pericak testified that DOT determined that the best option was to close the Bayview access road as it would prevent motorists from crossing Route 5 to Bayview Road and prevent them from making illegal left turns onto Route 5 (TT: 95-98).
Pericak testified that she became aware that the Town of Hamburg passed a resolution in January 2007 supporting closure of the Bayview access road but then learned in March 2007(2) that they no longer supported the closure. She stated that she received four telephone calls from business owners located along the westbound side of Route 5 who were telling her that the closure would put them out of business and that subsequent to these calls, DOT received a letter from the Town of Hamburg indicating that they were seeking alternatives to closure. Pericak testified that those who supported the closure included the Locksley Park Taxpayers Association and the Hamburg Police Benevolent Association. They sent a letter to DOT on July 4, 2006 (Exhibit 45) in which they advised of "another bad personal injury accident" at the Route 5 and Bayview access road intersection and expressed concern about the "dangerous crossover" and asked that it be closed off. She stated that ultimately, the planned temporary closure of the Bayview access road planned for May 2007 never occurred (TT: 99-105). Pericak acknowledged receiving a further letter from the Locksley Park Taxpayers Association dated February 10, 2009 advising of their continued concerns of the "dangerous crossover" at Route 5 and the Bayview access road and stating that according to Town of Hamburg Police Department, there had been additional accidents in 2008 and that their 95 members still supported closure (TT: 105-109).
Pericak identified the letter from DOT to the Town of Hamburg Supervisor dated April 2, 2007 (Exhibit 11) as being a letter whose preparation she assisted with and that it summarized the status of the Bayview access road closure request from DOT, that DOT had identified "a safety issue at this location," that they "recognize the need to take action at this location," that they were sensitive to the impact upon local businesses if the closure were to occur, and that the Town had requested further alternatives, including the installation of a signal and reduction in the speed limit. This letter also identified that the Locksley Park Taxpayers Association and the Town of Hamburg Police Benevolent Association continued to support the closure. The letter advised that a public hearing would be scheduled as part of another project in this area involving Route 5 between Lasalle and Kane, for which construction was scheduled in 2008 (Exhibit 1; TT: 109-114). Pericak testified that the public meeting document (Exhibit 20) included a summary of the results of a five year study of the subject roadway section for the time period June 1, 2002 through June 30, 2007. She stated that it also included the results of the studies to determine if a reduction of the speed limit and/or adding a traffic signal were feasible alternatives.
Pericak testified that with respect to the accident diagram relating to the replacement of the "no left turn signs" (Exhibit 6), that of the accidents listed there were no fatalities during the period of the study from July 1995 through June 1998. Pericak identified two additional accident study diagrams, Exhibits D and E, both of which she indicated would have been performed by Angelo Borgese. She stated that Exhibit D was a study of the accident history for the time period June 1, 2002 to September 30, 2005. This study indicated that the accident rate for vehicle traffic in both directions was 1.04 Acc/MVMT entering the intersection and during that time period there were no fatalities. Pericak stated that Exhibit E was a study of the accident history for the time period June 1, 2002 to June 30, 2007. She stated that this diagram indicated that there were no fatalities during this time period and the accident rate was the same. She testified that the conclusion drawn from these studies was that this intersection did not meet any of the criteria for a reduction of the speed limit or the installation of a traffic signal. Pericak testified that the results of these studies were available prior to the public hearing held on January 16, 2008 (TT: 114-117).
Pericak identified two letters from the Locksley Park Taxpayers Association, Exhibits 9 and 18, that she had received. The first letter dated March 2007 referenced the subject intersection as a "dangerous crossover" for vehicles traveling east on Route 5 with vehicles pulling out from the Bayview access road. The letter thanked Pericak for the anticipated closing of the access road and stated that their membership of over 100 members who live in this area and use the road daily were in full support of the closing. The second letter to Pericak dated February 10, 2009 reiterated the group's concern of the "dangerous crossover" for vehicles traveling east on Route 5 with vehicles pulling out from the subject access road, and that additional accidents had occurred in 2008. It referenced the public hearing and that DOT had "indicated that something would be done as the Rt 5 paving project progressed. At least the Yield Signs would be replaced with STOP signs (this has not been done)." Pericak stated that she was aware of the Locksley Park group's support for the closing of the Bayview access road and that as of February 10, 2009, it had not yet been closed (TT: 117-122).
Pericak testified that from all of the studies conducted, it was DOT's recommendation that the Bayview access road be closed. She also stated that in her role as a safety evaluation engineer for DOT, she knew that closure would increase the safety of this intersection for the public. Pericak also testified that in addition, closure of the access road was the cheapest option but that the four businesses in that area believed that closure was not in their best interests. She was not aware whether the Town of Hamburg ever withdrew their resolution supporting the closure and that although the State did not require the Town's support to close it, it was better to have their support (TT: 123-127).
On cross-examination, Pericak testified that neither the first collision diagram of the subject intersection (Exhibit 6) nor the two collision diagrams that she was involved in the preparation of covering the time periods of June 1, 2002 to September 30, 2005 and June 1, 2002 to June 30, 2007 (Exhibits D and E) indicated any fatal accidents. There was a third accident study and report identified by Pericak (Exhibit F) dated August 7, 2009, which was a study for the period January 1, 2005 to October 31, 2008. Pericak testified that this study was unrelated to the two previous studies and was to calculate the linear accident rate as opposed to the intersection accident rate (TT: 133-139).
Pericak testified that the process to close the Bayview access road as proposed in the December 18, 2006 letter to the Town of Hamburg (Exhibit 35) would have also required an in-depth traffic study to determine where traffic would go, as well as any impact upon noise and air quality. Pericak stated that she attended the public meeting identified in the letter and that everyone who spoke to her at that meeting was against the closure. She testified that the impact of the closure upon the thousands of commuter vehicles each day would also be considered (TT: 139-144).
Pericak identified an initial project proposal (IPP), Exhibit H, dated June 2010. She stated that the purpose of an IPP is to reserve a place on the region's capital program for this project. Pericak explained the "Problem Description" on the third page of the document that the primary accident pattern consisted of collisions between eastbound motor vehicles on Route 5 and southbound motor vehicles on Bayview and that the accident rate exceeded the comparable statewide average accident rate. She testified that the first draft of the IPP was completed on February 4, 2010. Pericak stated that the next step after the IPP was drafted was to firm up the costs associated with the project. It would then go through a planning process and on to the design group, who would either progress it as its own project or incorporate it into another project (TT: 152-156).
On redirect, Pericak testified that fatal accidents were not the only important accidents when conducting an accident study. With respect to the IPP, she testified that the project scoping would progress once it was approved by the DOT regional director, which in this case occurred on June 18, 2010, about one month after the May 9, 2010 accident involving claimant. Pericak also testified that none of the results of the prior accident studies had changed DOT's position that there was a safety concern at the subject intersection. She testified that if there had been no opposition, the temporary closure of the Bayview access road could have occurred without a capital program project. Pericak stated that the temporary closure did not take place because the seasonal businesses were against it. However, she agreed that a temporary closure was not attempted at the close of the season in September 2007. Pericak also agreed that DOT supported closure of the access road from the time of the December 18, 2006 letter (Exhibit 35) through to the completion of the IPP in June 2010 and that after the project scoping was completed, the access road was then closed (TT: 160-166).TESTIMONY OF STEVEN WALTERS
Steven Walters served as the Supervisor of the Town of Hamburg between January 1, 2006 and December 31, 2017. Mr. Walters testified that he was aware that Bayview Road is a town road in the Town of Hamburg and believed that the Bayview access road was a state controlled road within its right-of-way. Walters was shown the December 18, 2006 letter addressed to him from DOT and stated his general recollection that there were safety concerns regarding the intersection with the Bayview access road, that the State was seeking to close it and sought a resolution from the Town approving of this change (TT:176-185).
Walters was directed to the Hamburg Town Board Meeting minutes (Exhibit 16) to which he responded that he did not have a specific recollection but that Mr. Ellis reported back to the board regarding discussions with affected parties and the State. Walters stated that with respect to the Bayview access road, he did not believe that the Town had any authority with respect to closure of the road and that they passed the resolution because "[t]hat's what the State requested." He testified that he presumed that "this [was] just the State making sure the local municipality was informed and provided some input on what they were going to be doing" (TT: 190-193). Walters explained that the purpose of his letter of March 13, 2007 was to relate the Town's position that they wanted alternatives to be explored before any closure took place. He stated that there were four area businesses that opposed the closure of the access road, but agreed that closure would not prevent people from accessing their businesses (TT: 194-197). Walters testified that the letter from DOT dated February 15, 2008, informed him that DOT had looked at the alternatives of installing a signal light or reducing the speed limit in that section of Route 5 and found neither to be an appropriate alternative to closure of the access road. After receipt of this letter, Walters stated that he did not recall ever hearing again from DOT regarding the Bayview access road (TT: 202-204).
On cross-examination, Walters testified that after initially approving a resolution to close the Bayview access road, the Town received both favorable and opposing views on the closure. As a result, he stated that the Town then asked DOT to study other alternatives. Walters agreed that his letter of March 13, 2007 to DOT stated that the town board could no longer support the resolution and wanted a study on the other options before making a final determination (TT: 220-222).TESTIMONY OF ANGELO BORGESE
Angelo Borgese is a licensed civil engineer employed by DOT and is presently the regional materials engineer and has held that position for two years. Previously, he was a regional traffic operations engineer for 13 years. During direct examination by claimant's counsel, Borgese testified that as the regional traffic operations engineer, he was responsible for conducting traffic operation studies, which included traffic signals, traffic signs and pavement markings. Borgese testified about the traffic signal and speed studies performed by him in 2006 and 2007 regarding Route 5 at the Bayview access road. He testified that these studies concluded that neither a speed reduction nor a traffic signal were appropriate for this location (TT: 226-232). Borgese testified that Supervisor Walters' letter (Exhibit 19) expressing concern about the potential impact of the closure to businesses in the vicinity of the Bayview access road was the impetus for these studies. However, he stated that his involvement with DOT's recommendation to close the Bayview access road was limited to performing these two studies (TT: 232-234).
In his direct examination by the Assistant Attorney General, Borgese explained the process by which the two studies were conducted and identified Exhibit I as the speed study. He identified the factors that were considered, which included roadway characteristics, roadside development and a statistical analysis of prevailing speeds as determined by radar checks. Borgese stated that DOT's experience has shown that if there is no apparent reason for driving at a reduced speed limit, the posting of signs with an arbitrarily lower speed limit will not bring about a voluntary reduction in speed (TT: 236-241). He also was questioned and explained the process followed with the traffic signal study (Exhibit J), through which DOT analyzed whether a traffic signal was needed at this intersection. In so doing, he stated that one factor considered is the delay experienced in traffic as the addition of a traffic signal can actually increase delays and cause drivers to do unexpected things in order to avoid being stopped at the signal light. Borgese testified that the result of the study referenced in the February 15, 2008 letter to Walters (Exhibit 1) was that a traffic signal was not warranted at this location (TT: 241-250). During cross-examination, Borgese testified about the means by which radar samples were obtained for this speed study and that in one instance, a similar collision had been observed on September 17, 2007 involving a vehicle driving southbound from the Bayview access road that pulled in front of a vehicle traveling eastbound on Route 5 (TT: 250-252).TESTIMONY OF JEFFREY LAVELLE
Lieutenant Jeffrey Lavelle has been employed for the past 17 years with the Town of Hamburg Police Department. He testified that while so employed he received formal training in advanced accident investigation and crash reconstruction. As of May 9, 2010, he was a patrol officer and in that position had performed thousands of accident investigations. Lavelle testified that he responded to the accident involving claimant. He was familiar with that intersection and the yield sign for southbound vehicles at the Bayview access road. Lavelle identified four photographs taken at the accident scene (Exhibits K1- K4). Photo exhibit K2 showed the yield sign and a white painted stop line for southbound vehicles at the Bayview access road. Lavelle testified that vehicles are not to go past the white stop line until Route 5 is clear of traffic. Photo exhibit K1 shows Bayview Road from the opposite side, for northbound traffic entering Route 5 and the stop sign in place at this intersection. Lavelle identified the schematic drawing that he prepared in his accident investigation (Exhibit K5) which showed the placement of the vehicles involved in the subject collision, as well as skid marks and gouge marks (TT: 257-271). Referencing photo Exhibit K2, Lavelle testified that the yield sign and the white stop line were in place on the day of the accident. He also testified that there was nothing that would obstruct or block the view of a driver on the Bayview access road from seeing oncoming eastbound traffic on Route 5. Furthermore, Lavelle testified that he saw no evidence that claimant's vehicle braked prior to the collision with the Mackey vehicle. On cross-examination, Lavelle testified that he did not know anything about studies performed by DOT regarding the potential closure of the Bayview access road (TT: 271-276).TESTIMONY OF SANJYOT VAIDYA
Sanjyot Vaidya is a licensed professional engineer and has been an assistant regional design engineer with DOT since 2007, beginning her employment in 1993. As an assistant regional design engineer, she testified that she serves as a project manager and supervises four squads of six people who produce plans and specifications for contract documents for highway design projects. Vaidya testified about the steps in the process by which DOT develops a highway project beginning with the initial project proposal or IPP and getting that project funded and on the five year capital program. She stated that after the IPP is signed off by the DOT regional director, the next step is either a project scoping report or a design report. After the project scoping report is approved, Vaidya testified that the project then goes on to develop preliminary plans where further engineering investigations examine alternatives identified in the project scoping report. Once completed, she stated that dependent upon the complexity of the project, it would then go to a public information meeting or a public hearing. Based on the comments received from the public, Vaidya stated that DOT then would develop the final design report, which incorporates into it all feasible alternatives. The final design report is then approved either by the DOT regional director or the deputy chief engineer. Once approved, she stated that plans and specifications for the contract bid documents are prepared, after which the bidding process takes place and a contract is awarded. Vaidya identified Exhibit H as the IPP from June 2010 for the Route 5 at Bayview access road project. The IPP stated in the problem description that studies confirmed that an accident pattern existed of collisions between eastbound motor vehicles on Route 5 and southbound motor vehicles from the Bayview access road and that the accident rate exceeded the comparable statewide average accident rate (TT: 311-320). Vaidya testified that the date when the IPP was started by Pericak was February 4, 2010.
Vaidya identified the September 2011 project scoping report for the Route 5 at Bayview (Exhibit L). She testified that the PIN number assigned to this project provides a description of the feasible alternatives, the social, economic and environmental impacts, the costs associated and all of the studies that go into preparation of the report. Vaidya also identified the December 2015 final design report for the project (Exhibit M) and testified that she directly supervised the preparation of chapters 1 and 3 of this report. She testified that one of the considerations that goes into this report is whether there are any environmental impacts, including consideration of the community's desires and if there are any other stakeholders such as a municipality or businesses (TT: 321-325).
On cross-examination, Vaidya agreed that all of the steps involved with a capital project cannot begin until the draft IPP is signed off, which in this project was June 18, 2010 (Exhibit H). She also testified that she had nothing to do with the studies about Route 5 and the Bayview access road between 2005 and 2010 (TT: 326-327).JAMES BARNACK, ALAN TAYLOR AND WILLIAM J. MACKEY
The parties stipulated into evidence the entire transcript of the examinations before trial of James Barnack and Alan Taylor, which were received into evidence without objection as Exhibits 51 and 52, respectively.(3) The parties also stipulated into evidence the entire transcript of the trial testimony of William J. Mackey in the Supreme Court companion action entitled, Lee-Ann Deering v. William J. Mackey, which was received into evidence as Exhibit 53.
James Barnack was formerly the regional traffic engineer for the Buffalo regional office of DOT and retired on January 7, 2007. Barnack testified that he held that position for about 13 years. He testified that when there is an elevated level of motor vehicle accidents of the same type over a period of years at an intersection, this raises concern but there is not always a solution. Barnack testified that the decision to close an intersection is one made either by the regional director or by the DOT Commissioner and the Governor's Office (Exh. 51: 10-23). He stated that closures of intersections are handled differently than repairing or maintaining a section of state highway. With respect to a potential intersection closure, Barnack testified that politicians then get involved and the ultimate decision is elevated to higher levels of government (Exh. 51: 23-26). Barnack testified that if an intersection has an accident rate higher than the state average, DOT will complete a study to determine why the accident rate is higher and if there is any solution that may be implemented to reduce the accident rate (Exh. 51: 66-67). He was asked whether DOT when analyzing the safety of a roadway or intersection considered driver information overload. He responded that information overload relates more to the placement of signs so as to make it clean and simple for the motoring public and that information overload usually only happens in very dense urban areas where there is not a lot of room to do different things (Exh. 51: 69-70).
Alan Taylor was formerly the regional director of the DOT Buffalo Regional office and was responsible for Erie, Niagara, Chautauqua and Cayuga counties. He retired from that position in September 2010 (Exh. 52: 6-7). Taylor testified that with respect to the request to the Town of Hamburg that they provide DOT with a resolution in favor of the proposed closing of the Bayview access road, any decision at DOT would be based upon a number of inputs and one of them would be from the local municipality. He added that it would be very unusual to move ahead with a project that a municipality and in this instance, the Town of Hamburg specifically objected to (Exh. 52: 25-27). Taylor testified that he did not know whether DOT made any determination why the accident rate at this location was almost four times the statewide average (Exh. 52: 29-30). He stated that any changes to the Bayview access road were contemplated to be a part of a Route 5 pavement project. He added that there was a paving project under consideration during that time period and that if the improvement involved some physical removal of pavement, the removal of the Bayview access road or crossover would have been done within this capital improvement project (Exh. 52: 36-39). Taylor was asked and denied that money was ever a consideration in the determination of an alternative to the closure of the Bayview access road and that in fact, the expense involved in closing it as part of a Route 5 paving project would be relatively small (Exh. 52: 60).
William J. Mackey was the owner and operator of the 2001 Chevrolet Suburban that collided with claimant's motor vehicle on May 9, 2010. Mackey testified that he was traveling at 50 mph on Route 5 prior to the collision. As he was proceeding towards the Bayview Road intersection, he stated that there were no cars in front, behind or to either side of his vehicle. Mackey observed three cars, all stopped one behind the other on the Bayview access road. He observed the first vehicle cross Route 5 to Bayview Road when he was about 300 yards from the intersection. Mackey testified that he then observed the second vehicle cross Route 5 to Bayview Road when he was about 100 yards from the Bayview intersection (Exh. 53: 2-9). He testified that "the second car shot across and I said to myself, a little chancy. And right about that time I got traffic merging to my right on 75 [Route 75], I turn, and that was it, I was white. The airbags got me." (Exhibit 53:10). Mackey testified that the Deering vehicle, which was behind the second car at the Bayview access road had to cross one lane of traffic on Route 5 in order to get into the center lane in which he was traveling. He testified that he did not see the Deering vehicle move onto Route 5 from the Bayview access road because he was looking at his side view mirror for traffic that would be coming to his right as Route 75 merges at this point with Route 5 (Exh. 53: 9-16). Mackey further testified that after the second vehicle crossed, he did not anticipate the third vehicle (the Deering vehicle) would move because he was right at the intersection of Bayview Road (Exh. 53: 28-29). He stated that at the point that the second vehicle drove across Route 5, he did not need to reduce his speed, apply his brakes or sound his horn because "there was nothing in front of me" (Exh. 53: 34-35).TESTIMONY OF DAVID LISKE
David Liske is an accident reconstruction expert who based upon his education, training and experience was permitted to testify as an expert witness on behalf of claimant in the fields of accident reconstruction and human factor engineering. He received a masters degree in kinesiology and human factors engineering, and was certified in accident reconstruction by Accreditation Commission for Traffic Accident Reconstruction (ACTAR). Liske defined human factors as the study of human capabilities and limitations, particularly as people interact with products, technology, and the environment, including roadways. He stated that it is a fundamental principle of all traffic engineering design principles to incorporate human factors principles, including driver error and driver information overload (TT: 279-282). Liske opined that there was a significant cluster of right angled accidents at the subject intersection that was not simply due to driver error but resulted from multiple complex factors that drivers needed to process both when traveling on Route 5 or crossing from the Bayview access road. It was his opinion that there was an insufficient stopping sight distance for vehicles on Route 5 to avoid a vehicle that failed to yield the right-of-way and entered Route 5 from the Bayview access road. He also opined that the State's engineering judgment led them to the same conclusion when they recommended the closure of the Bayview access road. Liske opined that the ultimate cause was claimant Lee-Ann Deering failing to yield the right-of-way to the Mackey vehicle that was moving at or near the State speed limit of 55 mph. He added that whether claimant's failure to yield was due to information overload or other factors, the existence of a cluster of similar accidents at this location demonstrates that other drivers had the same difficulty that claimant had encountered (TT: 291-296).
On cross-examination, Liske was questioned about his testimony in the Supreme Court companion action where he was retained by the defendant in that action, Mackey. He agreed that in his testimony at the trial of this action that he opined without qualification that Lee-Ann Deering was the sole cause of the accident, not other factors (TT: 297-301). On redirect examination, Liske explained his testimony stating that the underlying root cause of the accident was the failure to yield the right-of-way and that the cause of that driver error had its foundational roots in information processing overload of the cognitive capabilities to handle the situation at this intersection. He also agreed that he testified in the Supreme Court action that it was his opinion that the subject intersection was dangerous (TT: 301-306).TESTIMONY OF LAWRENCE M. LEVINE
Lawrence M. Levine(4) is a licensed professional engineer in New York and New Jersey who based upon his education, training and experience was permitted to testify as an expert witness on behalf of the State in the fields of highway design and construction and accident reconstruction (TT: 369-378). Mr. Levine was retained by the State in 2011. He identified Exhibit A as a federal aid reconstruction project, the design plans for which were approved in 1960, and which includes the intersection with the Bayview access road. Levine also testified that the record plans for this highway (Exhibit B) included a reconstruction of Route 5 in 1982, which brought Route 5 up to the standards of the day, including guide rails and signage as the volume of traffic had increased. He testified that Exhibit B also included Route 5 and the intersection with Bayview Road and the Bayview access road. Levine also identified Exhibit C, which are record plans completed in December 2009 and which do not show any changes to Bayview Road or the access road. Based upon his review of Exhibits A, B and C, Levine opined that these three projects brought Route 5 up to the applicable highway design standards of the day and that none of these projects included the closure of the Bayview access road (TT: 378-383).
Levine testified that from his examination of Ms. Pericak's accident analysis of August 7, 2009 (Exhibit F) that the intersection of Route 5 and the Bayview access road was not categorized as a "high accident location" or HAL. He explained that a HAL is limited to those intersections in the State that are "a bad spot" (TT: 405-406). Levine testified that he visited the accident site three or four times and did a very limited accident reconstruction and also reviewed what Mr. Liske had performed. He also reviewed the police accident report and photo exhibits. He testified that from his examination of the report and photos that claimant's vehicle could have gotten up to a speed of 20 mph as she attempted to cross Route 5 and that the Mackey vehicle was going 45 to 50 mph at the moment of impact. Levine testified that if claimant was going 20 mph at the time of impact, that equates to 30 feet per second and that if the Mackey vehicle was going 50 mph, he was traveling at 75 feet per second. As such, Levine testified that one second prior to impact, the claimant's vehicle was 30 feet back which would have placed her in the median of Route 5. He stated that two seconds earlier would then place claimant at the Bayview access road. As such, Levine testified that claimant's vehicle was only on Route 5 for about one second prior to the collision, and as such, the Mackey vehicle had no time to react. Levine's opinion with a reasonable degree of engineering and accident reconstruction certainty was that the cause of the accident was claimant pulling out in front of the Mackey vehicle (TT: 406-411). On cross-examination, Levine was asked whether he conducted any type of human factors analysis in this case and he testified that he only did so with respect to speed and how fast people can react (TT: 413-414).LAW AND ANALYSIS
The State has a nondelegable duty to adequately design, construct and maintain its roadways in a reasonably safe condition (Friedman v State of New York, 67 NY2d 271 ; Weiss v Fote, 7 NY2d 579 ). The State is not an insurer of the safety of its roadways and the mere happening of an accident does not render the State liable (Tomassi v Town of Union, 46 NY2d 91 ). The claimant has the burden to show that the State either created a dangerous condition or had actual or constructive notice of the presence of a dangerous condition and then failed to take reasonable measures to correct it (Brooks v New York State Thruway Auth., 73 AD2d 767, 768 [3d Dept 1979], affd 51 NY2d 892 ). In order to constitute constructive notice, the defect must be visible, apparent and exist for a sufficient length of time prior to the accident to permit the defendant to discover and remedy it (Gordon v American Museum of Natural History, 67 NY2d 836, 837 ). Finally, in order to find liability against the State it must be established that the "ascribed negligence is a proximate cause of the accident" (Ring v State of New York, 270 AD2d 788, 789 [3d Dept 2000]).
The first issue to be decided is whether the alleged negligence of the State arises out of its engagement in a proprietary function or if it acted in a governmental capacity at the time the claim arose (Applewhite v Accuhealth, Inc., 21 NY3d 420, 425 ). In order to determine whether the State was acting within a governmental or proprietary capacity, "the specific act or omission out of which the injury is claimed to have arisen and the capacity in which that act or failure to act occurred" must be examined (Turturro v City of New York, 28 NY3d 469, 478 , quoting Matter of World Trade Ctr. Bombing Litig., 17 NY3d 428, 447 ). Here, claimant alleges that the State's negligence was its failure to close the Bayview access road when it knew for a period of five years or more prior to claimant's accident that the intersection was a dangerous condition due to the cluster of accidents involving eastbound motor vehicles on Route 5 colliding with southbound motor vehicles attempting to cross Route 5 from the Bayview access road. It has been held that highway planning, design, and maintenance are proprietary functions arising from the State's "proprietary duty to keep its roads and highways in a reasonably safe condition" (Id. at 479, quoting Wittorf v City of New York, 23 NY3d 473, 479 ). Accordingly, the relevant act or omission in this claim arises from a proprietary function and thereby the State is afforded a qualified immunity from liability (Id. at 479-480).
As the relevant act or omission in this claim arises out of a proprietary function, the qualified nature of this immunity requires that the State undertake a reasonable study of the traffic condition in question and implement a traffic plan to address that issue (Id. at 480). In the present claim, the proof at trial established that the State was aware as early as January 2001 when a consulting engineering firm was retained by the State to prepare a collision diagram for the subject intersection (Exhibit 6), which indicated a cluster of accidents involving eastbound vehicles on Route 5 colliding with southbound vehicles crossing from the Bayview access road. This study utilized accident data for the period July 1995 to June 1998 and resulted in the replacement and installation of larger "no left turn" signs. Then on October 19, 2005, the State was requested by the Traffic Safety Advisory Board of the Town of Hamburg (Exhibit 8) to conduct a study to determine the feasibility of closing the Bayview access road. In this letter, Mr. Ellis stated that "there have been crashes in the area involving eastbound vehicles and vehicles attempting to access Bayview Road southbound from NY#5. I have not only observed numerous 'close calls' in this area, but also increased use of this access by tractor trailers which in turn creates conflict with vehicles coming from the overpass, " (referring to the eastbound Route 5 overpass approaching the Bayview intersection).
In response, the State conducted a study that was performed under the direction of Ms. Pericak. Pericak testified that the study evaluated accident data for the period June 1, 2002 to September 30, 2005 (Exhibit D), which determined that a pattern of accidents existed involving eastbound vehicles on Route 5 colliding with southbound vehicles crossing Route 5 from the Bayview access road. She further testified that the results of this study detailed a total of 40 accidents during this time period which resulted in an accident rate of 1.04 Acc/MVMT as compared to the statewide average of 0.27 Acc/MVMT, nearly four times the statewide average. In its responding letter to the Town of Hamburg dated December 18, 2006 (Exhibit 35), DOT concluded that "[i]n light of the increased safety benefits, the New York State Department of Transportation would like to pursue the closure of this access area" (referring to the Bayview access road) and requested a resolution from the Town of Hamburg supporting the closure.(5) This same letter also stated that once DOT received the Town's resolution, they would continue the process to close this access road and as part of that process, a temporary closure of six to nine months was planned to review traffic patterns and to solicit the public's input regarding the change prior to any permanent closure.
On March 12, 2007, the Town of Hamburg passed a resolution supporting DOT's plan to close the Bayview access road. However, the board minutes of the Town of Hamburg (Exhibit 16) indicate that Supervisor Walters spoke to some of the business owners who would be impacted by the closure of the access road and there were suggestions that the State instead consider lowering the speed limit to 45 mph and delay the planned temporary closing until September 2007 in order to protect these businesses (Exhibit 16 at pp. 10-11). On March 13, 2007, Supervisor Walters sent a letter to DOT (Exhibit 19) stating that they could not support the closure of the access road at that time and requested that DOT first consider other options that would be less drastic to those businesses such as lowering the speed limit or placing a traffic signal at the subject intersection (Exhibit 19). On April 2, 2007, DOT responded to Supervisor Walters (Exhibit 11), stating that the study requested by the Town of Hamburg Traffic Safety Advisory Board had "identified a safety issue at this location" and "[w]hile we recognize the need to take action at this location, we are also sensitive to the seasonal nature of the businesses on the north side of NY Route 5 in this area" and that "further alternatives to the closure will be evaluated by our office including the installation of a signal and reduction in the speed limit."
On January 16, 2008, the public hearing was conducted and a public notice prepared by DOT for that hearing included details of an additional five-year accident study utilizing data from June 1, 2002 through June 30, 2007. This study found 51 accidents and an accident rate at the subject intersection of 0.61 Acc/MVMT, which was still over two times higher than the statewide average accident rate of 0.27 Acc/MVMT (Exhibit 20).(6) The concluding sentence of that public notice stated that "[a]n engineering study of benefits and effects with continued public input will be done before a final decision is made." On February 15, 2008, DOT communicated to Supervisor Walters that they had completed their traffic engineering investigation of the options suggested by the Town and had concluded from those studies that these alternatives were "not suitable solutions to mitigate the safety concerns at this location" (Exhibit 1 at p. 2). DOT concluded this letter by stating that:
"the Department will seek to identify additional modifications which we will investigate to address the safety concerns at the Bayview Access Road. Any decision concerning altering the operation of this intersection would involve engineering and environmental studies, and the public being fully involved by either a public meeting or public hearing. Therefore, a final resolution of this matter will be forthcoming."
The only other accident study conducted by DOT after the February 15, 2008 letter was dated August 7, 2009 and concerned a separate issue utilizing accident data between November 1, 2005 and October 31, 2008 (Exhibit F). The stated purpose of this study was not to further investigate the results of the previous studies concerning the safety of the Bayview access road but to analyze a separate issue, that being the accident experience for eastbound vehicles on the raised or elevated section of Route 5 that were weaving to make a right turn onto southbound Bayview Road.(7) This study reported 61 accidents over a three year period with 10 of those accidents being right-angle incidents at the intersection of Route 5 and the Bayview access road. The trial record indicated that no further action was taken by DOT after the January 17, 2008 letter to arrive at a final resolution and the IPP for this project was not completed for over two years. Pericak testified that the IPP completed February 4, 2010 was not then approved until June 18, 2010. The approval date when it was signed was over one month after the claimant's accident of May 9, 2010. Ms. Vaidya, an assistant design engineer with DOT testified that none of the steps involved with a capital project can begin until the draft IPP is signed off, which in this case was June 18, 2010. In addition, she testified that the project scoping report for this project (Exhibit L) was completed in September 2011 and this project ultimately became part of a larger project for which a final design report was not signed off until January 20, 2016 (Exhibit M). The Bayview access road was not closed until after the implementation of this project.
The critical factual issue for the Court is whether the State's failure to take any remedial action to address the dangerous condition at the Bayview access road after it had completed all of its studies and had stated that "a final resolution of this matter will be forthcoming" (Exhibit 1) acted reasonably under the facts and circumstances of this case. It has been held that an "unjustifiable delay in implementing [a remedial] plan constitutes a breach of the [State's] duty to the public just as surely as if it had totally failed to study the known condition in the first instance" (Id. at 480, quoting Friedman, supra at 286). It is the Court's determination that the State's failure to close the Bayview access road on a temporary basis after completion of all of its studies in 2008 until a capital project could be finalized was an unjustifiable delay.
The Court finds that the proof at trial established that as a result of the study conducted and referenced in DOT's letter to the Town of Hamburg on December 18, 2006, the State had actual notice of the presence of a dangerous condition at the Route 5 and Bayview access road intersection as the study demonstrated that the number of accidents at the subject intersection was nearly four times greater than the statewide average. As a result of this study, DOT had recommended closure of the Bayview access road. Although DOT contemplated a temporary closure as early as May 2007, that never took place because the Town of Hamburg withdrew its support and requested that DOT conduct additional studies to determine if including a traffic signal and/or reducing the speed limit in the area of the access road would be feasible alternatives to avoid any negative impact to four businesses on the north side of Route 5 near the subject intersection. By February 2008, these additional studies were completed and DOT had related to the Town of Hamburg that neither of these alternatives were feasible and reiterated its earlier recommendation to close the Bayview access road. Instead of moving forward with a temporary closure of the Bayview access road as previously contemplated and moving towards a "final resolution," no corrective action was taken. Even after preparation of the draft IPP in February 2010, DOT still took no corrective action.
The proof at trial established that a temporary closure would have immediately provided safety benefits at the subject intersection and could have been accomplished quickly and with limited expense. DOT satisfied the Town of Hamburg's request that they explore whether other feasible alternatives existed and by 2008, it was clear that there were no feasible alternatives other than closing the access road. Pericak testified that DOT consistently supported the closure of the Bayview access road from the time of the December 18, 2006 letter through to the approval of the IPP in June 2010. Instead of implementing a simple solution to alleviate a dangerous condition at this intersection, i.e., a temporary closure of the access road, the proof at trial established that the long awaited "final resolution" that resulted in the closure of the Bayview access road did not occur for an additional seven years and only after the implementation of the project defined in the December 2015 Final Design Report (Exhibit M).
Applying these legal principles to the proof submitted at trial and after evaluating the exhibits received into evidence and the testimony of the witnesses and their demeanor while testifying, I find that claimant has established that the State was negligent by a preponderance of the evidence. I find that the proof at trial established that the State breached its duty to maintain the subject intersection in a reasonably safe condition. In so doing, I find that there was an unjustifiable delay by the State in implementing a remedial plan to address the safety deficiencies existing at the subject intersection. I find that by December 2006, the State had actual notice of the existence of a pattern of right-angle accidents at this intersection involving vehicles traveling eastbound on Route 5 colliding with vehicles traveling southbound from the Bayview access road, the same type of accident as that involving the claimant's and Mackey's vehicles. As such, the State was aware of the existence of a dangerous highway condition and was under a legal obligation to take action to remedy it (Brown v State of New York, 31 NY3d 514, 519 ; Friedman, supra at 286). It is undisputed that the State completed several traffic studies between December 2006 and February 2008, all of which recommended closure of the Bayview access road. It is also undisputed that none of these traffic studies determined any other feasible alternative than closure of the access road to correct the dangerous condition existing at the subject intersection. Although stating on February 15, 2008 that a final resolution would be forthcoming, the State took no steps to address this dangerous condition and improve safety at this intersection while it drafted an IPP, which process was not completed until June 2010. It has been held that a breach proximately causes harm if it is a substantial factor in causing the claimant's injuries (Brown, supra at 519; Turturro, supra at 483). The State's failure to erect a temporary closure at the Bayview access road after completion of the final study in February 2008 until a permanent solution could be incorporated into a capital project was a substantial factor in causing claimant's accident.
As to the issue of comparative negligence, I also find that claimant must bear responsibility for her injuries. CPLR §1411 provides that in any action to recover damages for personal injury, the culpable conduct attributable to the claimant, including contributory negligence, shall not bar recovery but the amount of damages otherwise recoverable shall be diminished in the proportion which the culpable conduct attributable to the claimant bears to the culpable conduct which caused the damages. Although finding that the State was negligent, there may be more than one proximate cause of an injury (Turturro, supra at 483; Argentina v Emery World Wide Delivery Corp., 93 NY2d 554, 560 n. 2 ). I find that the proof at trial established that claimant was also negligent and that her negligence qualifies as a proximate cause. I find that the claimant was the third vehicle behind two other vehicles at the Bayview access road as the Mackey vehicle approached. I also find that the Mackey vehicle saw all three vehicles as he traveled eastbound on Route 5 and that he saw the two vehicles in front of claimant crossing Route 5 to Bayview Road. Lieutenant Lavelle, whose testimony I found to be credible, testified that the site distances at the access road were adequate to view oncoming eastbound traffic on Route 5. As such, I find that the Mackey vehicle was clearly visible to claimant before she attempted to cross Route 5 from the Bayview access road.
Accordingly, I find that claimant was negligent in failing to allow the Mackey vehicle to pass and to be certain that she could safely cross Route 5 before entering that intersection. A driver is required to see what is there to be seen through the proper use of his or her senses (Huff v Rodriguez, 45 AD3d 1430 [4th Dept 2007]; Lupowitz v Fogarty, 295 AD2d 576 [2d Dept 2002]). Furthermore, claimant was legally required pursuant to Vehicle and Traffic Law § 1142 (b)(8) to wait at the yield sign placed at the Bayview access road and yield the right-of-way to traffic on Route 5 until it was sufficiently clear to permit her to safely cross the eastbound lanes. Accordingly, claimant's failure to yield the right-of-way to the approaching Mackey vehicle was negligence and a substantial factor in causing this accident. In this regard, I did not find the testimony of claimant's expert, Mr. Liske, persuasive to establish that either the site distances at the Bayview access road were not adequate or that claimant's failure to yield the right-of-way had its foundational roots in information processing overload of her cognitive capabilities to handle the situation at this intersection. I therefore conclude based upon the evaluation of all proof offered at trial that liability should be apportioned between the parties with 50% liability against the State and 50% liability against claimant for her comparative negligence.
Claimant's motion for a directed verdict at the close of the trial is denied as numerous questions of fact were found by the Court to exist that were resolved as detailed in the decision above. As to any objections upon which this Court reserved decision during the course of the trial and as to any other motions made at trial upon which the Court previously reserved or which remain undecided, all are hereby denied.
The Clerk of the Court is directed to enter an interlocutory judgment on the issue of liability in accordance with this decision. The Court will set this matter down for trial on the issue of damages as soon as practicable.
September 12, 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. March 2007 is indicated in the decision as the transcript stated March 2000, which is incorrect.
3. References to the transcript will be by page number and referenced for example as "(Exh. 51: 1-3)".
4. Prior to Mr. Levine's testimony, claimant's counsel brought a motion to preclude his testimony in two areas, One, that he should not be permitted to testify as to the purported safety of the intersection. Secondly, that he should not be able to testify as to the process of a DOT project and the agency's bureaucracy. Third, that he should not be able to testify as to the reconstruction of the subject accident since he did not perform any reconstruction himself. The State objected to claimant's motion in all respects. After oral argument, the Court ruled that Mr. Levine could testify as an expert witness on behalf of the State, however, he would not be permitted to testify regarding the internal procedures of the DOT. In addition, if any of Mr. Levine's testimony contradicts the testimony of the DOT witnesses who appeared at trial, the Court would entertain an objection to that testimony on the basis that Mr. Levine was attempting to impeach the DOT witnesses and any such testimony would be stricken from the record (TT: 341-358).
5. Pericak testified that although it is not required to obtain the approval of the Town before closing a road, DOT prefers to have the Town and the public "on board if we can".
6. The study referenced is Exhibit E.
7. Southbound Bayview Road is directly across Route 5 from the Bayview access road.
8. Vehicle and Traffic Law § 1142 (b) provides that "[t]he driver of a vehicle approaching a yield sign shall in obedience to such sign slow down to a speed reasonable for existing conditions, or shall stop if necessary as provided in section eleven hundred seventy-two, and shall yield the right of way to any pedestrian legally crossing the roadway on which he is driving, and to any vehicle in the intersection or approaching on another highway so closely as to constitute an immediate hazard during the time such driver is moving across or within the intersection. Provided, however, that if such driver is involved in a collision with a pedestrian in a crosswalk or a vehicle in the intersection after driving past a yield sign without stopping, such collision shall be deemed prima facie evidence of his failure to yield the right of way."