State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: December 8, 2016 520504 

________________________________

MARK SCHROEDER et al.,

Appellants,

v MEMORANDUM AND ORDER

STATE OF NEW YORK,

Respondent.

________________________________

Calendar Date: October 21, 2016

Before: McCarthy, J.P., Egan Jr., Lynch, Clark and Aarons, JJ.

__________

Mark Lewis Schulman, Monticello, for appellants.

Eric T. Schneiderman, Attorney General, Albany (Brian D.

Ginsberg of counsel), for respondent.

__________

Lynch, J.

Appeal from a judgment of the Court of Claims (Schaewe,

J.), entered April 10, 2014, upon a decision of the court

following a bifurcated trial in favor of defendant on the issue

of liability.

Claimant, who was a member of a volunteer ambulance

company, was injured on October 18, 2000 when the ambulance in

which he was a passenger hit a stone wall located along the

westbound shoulder of State Route 17B in the Town of Delaware,

Sullivan County. Following a two day bench trial in January 2014

limited to the issue of liability, the Court of Claims dismissed

the claim, finding that defendant's failure to install a guide

rail was not a proximate cause of the injury and that, in any

event, defendant was entitled to qualified immunity. Claimant

appeals.
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Defendant's duty to maintain roads in a reasonably safe

condition includes the installation of guide rails when necessary

(see Friedman v State of New York, 67 NY2d 271, 283 [1986]; Hill

v Town of Reading, 18 AD3d 913, 915-916 [2005]; Lattanzi v State

of New York, 74 AD2d 378, 379 [1980], affd 53 NY2d 1045 [1981]). 

With respect to highway safety and design, defendant is "accorded

a qualified immunity from liability arising out of a highway

planning decision" (Friedman v State of New York, 67 NY2d at 283;

see Evans v State of New York, 130 AD3d 1352, 1353 [2015], lv

denied 26 NY3d 910 [2015]; Frechette v State of New York, 129

AD3d 1409, 1413 [2015]). "Under this doctrine of qualified

immunity, a governmental body may be held liable when its study

of a traffic condition is plainly inadequate or there is no

reasonable basis for its traffic plan" (Friedman v State of New

York, 67 NY2d at 284). 

At the time of the accident, the ambulance was proceeding

westerly on Route 17B. The stone wall in question, which has

been in place since the late 1800s, runs parallel along a curved

portion of Route 17B for approximately 110 feet. From the

vantage point of claimant's vehicle, the wall included an opening

for a concrete staircase about 40 feet west of where the wall

began. The record shows that the ambulance drifted to the right

and impacted the wall on two occasions. There is no real dispute

that, during the first impact, the passenger side of the

ambulance glanced against the wall breaking the mirror. Shortly

thereafter, there was a second impact in the area of the stairs,

the nature of which is at issue. Claimant maintains that there

was an abrupt impact with the concrete stairs that caused the

ambulance to stop, tossing him across the interior of the

ambulance box, or back of the ambulance, causing injury. 

Defendant maintains that the second impact was also of a glancing

nature.

Claimant essentially contends that defendant was negligent

in failing to take corrective measures to alleviate the dangerous

condition presented by a stone wall situate less than two feet

from the fog line of the westbound lane. According to claimant's

expert, Glenn Smith, a licensed engineer, defendant should have

either removed the wall or installed a guide rail – remedies that

would have avoided an abrupt collision with the stairs. In
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contrast, defendant presented the testimony of two licensed

engineers, Dean Smith, the assistant resident engineer for the

Department of Transportation (hereinafter DOT) in Sullivan

County, and Daniel Paddick, DOT's former regional traffic

engineer. Both of these witnesses testified that an effective

guide rail could not be installed given the limited room between

the road and the stone wall. Specifically, these witnesses

testified that a guide rail works by deflecting the impact of a

vehicle and needs a minimum of three feet to do so. The Court of

Claims credited the testimony of defendant's experts that the

lack of space would render a guide rail ineffective. The court

further credited Paddick's explanation that the stone wall

effectively served as a guide rail, such that the damage to the

ambulance would have been the same had a guide rail been in

place; this led the court to conclude that the absence of a guide

rail was not a proximate cause of claimant's injuries.

In reviewing a nonjury verdict, "we have 'broad authority

to independently review the probative weight of the evidence' but

we should defer to the [trial] court's credibility determinations

and factual findings" (Evans v State of New York, 130 AD3d at

1353, quoting Ball v State of New York, 106 AD3d 1248, 1249

[2013]). We recognize that both claimant and Martin Handler, an

emergency medical technician who was with claimant in the

ambulance box at the time of the accident, described the impact

as an abrupt stop. Handler further testified that the vehicle

was stopped in the road adjacent to the wall and that because the

driver was shaken up, Handler himself drove the ambulance further

down the road to a point of safety. The record, however, also

includes the 2005 deposition testimony of Robert Edington, who

testified that he "didn't feel a thing" with the second impact

and continued driving until pulling off the road about one tenth

of a mile past the accident scene. Notably, Paddick determined

from the nature of the damage to the stone wall at the stairs, as

well as the limited damage to the ambulance, that the second

impact was best described as a "sliding impact." He acknowledged

that the passenger runningboard may have impacted the stairs, but

explained that the crush damage was not consistent with an

abrupt, sudden impact. We note in viewing the photos that there

was limited damage to the stone wall and no damage to the front

of the ambulance. Notably, the ambulance box protrudes further
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out than the main cab of the ambulance, and the limited damage

along the passenger side of the ambulance comports with Paddick's

testimony. As such, we defer to the court's determination that

the absence of a guide rail was not a proximate cause of

claimant's injuries.

We further conclude that the record supports the

determination of the Court of Claims that defendant is entitled

to qualified immunity. Relevant here, there were two projects

along Route 17B in the vicinity of the stone wall, a 1993 culvert

replacement project and a 2000 guide rail project. While the

culvert project did not extend to the stone wall, in an August

1993 memorandum addressing "Accident Data and Analysis," Robert

MacMonigle, DOT's regional traffic engineer, commented that there

were two property damage accidents involving the stone wall

during a three-year study period. MacMonigle suggested that

"[i]t would be beneficial to make this wall as crashworthy as

possible (end sections, guide rail protection, etc.). If this

can be done within the scope of the project, it should be

considered." The 2000 guide rail project involved the guide rail

directly across Route 17B from the stone wall. A three-year

accident analysis for this project revealed one property damage

accident involving the stone wall. Paddick, who was employed by

DOT throughout these periods, testified that the limited history

of property damage accidents did not validate any corrective

measures. He further explained that relocating the wall, which

included a driveway running above and along the wall to a

residence, was an involved project not justified on a costbenefit ratio. Paddick pointed out that an October 20, 1994

memorandum from DOT's regional design engineer in region 9

concluded that the accident "analysis showed no countermeasures

are necessary." Paddick explained that a guide rail is a

countermeasure. For the 2000 guide rail project, Paddick

explained that one resolution extensively explored was to

straighten out Route 17B in the area of the stone wall. Since

that would have been a major project impacting the timing of a

remedy, DOT opted to replace the guide rails. The foregoing

adequately supports the court's determination that defendant's

planning decision not to install a guide rail or relocate the

wall was reasonable, entitling defendant to qualified immunity

(see Schwartz v New York State Thruway Auth., 95 AD2d 928, 929
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[1983], affd 61 NY2d 955 [1984]). 

McCarthy, J.P., Egan Jr., Clark and Aarons, JJ., concur.

ORDERED that the judgment is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court