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WASSERMAN v. CITY OF NEW YORK

October 8, 1992

DR. MARCIA S. WASSERMAN, Plaintiff, against THE CITY OF NEW YORK, MIKHAIL RYAZANTSEU, GERALD PUCA, "JOHN DOE", and THE STATEN ISLAND HOSPITAL, Defendants.


The opinion of the court was delivered by: I. LEO GLASSER

MEMORANDUM AND ORDER

 GLASSER, United States District Judge:

 Plaintiff Dr. Marcia Wasserman filed this action on January 19, 1990, alleging in her complaint that defendants' negligence caused her to suffer numerous injuries. Specifically, plaintiff was injured in a traffic accident on Rockland Avenue in Staten Island on November 27, 1988 at approximately 8:10 p.m. Plaintiff's westbound car apparently crossed the center line at the curve near 916 Rockland Avenue, striking the eastbound vehicle of defendant Mikhail Ryazantseu. At the time of the accident, driving conditions were poor, as it was dark outside and had been raining for some time.

 Defendants City, Ryazantseu, Puca, and "Doe" move for summary judgment under Federal Rule of Civil Procedure 56. The court addresses these motions in turn, with the facts peculiarly relevant to each motion set out at greater length below.

 I. Defendant City of New York

 Defendant City of New York moves for summary judgment on the grounds of qualified immunity for traffic planning decisions. Because the City demonstrates that its choice and implementation of its traffic plan had a rational basis consistent with New York law, the motion is granted.

 A. The City's study and improvement of Rockland Avenue

 The City was aware as early as 1986 that changing traffic patterns had made rural Rockland Avenue, which the City owns and designed, into a major thoroughfare carrying traffic across Staten Island. The City also knew that from 1985 through 1987 several fatal automobile accidents had occurred on Rockland Avenue's 2.5 miles of roadway. None of those accidents, nor any of the non-fatal accidents noteworthy for the number of injuries involved, had occurred in the immediate vicinity of 916 Rockland Avenue, which lies roughly 500 feet west of Forest Hill Road; rather, the most serious accident sites were clustered roughly three-quarters of a mile east of that curve, between Brielle Avenue and Manor Road.

 According to the deposition testimony of Richard Retting, former chief of the City's Department of Transportation ("DOT") safety division, in 1987 DOT conducted an exhaustive review of Rockland Avenue's signage, road condition, and accident history. (Retting Aff. 27-28) DOT obtained the relevant accident reports from the police department, analyzing and separating them according to type of accident and section of roadway. (Levi Affirmation Exh. J) This review also involved numerous field visits to sections of the road. (Retting Aff. 28) Joseph Albano, Staten Island Borough Engineer, who at the same time conducted his own analysis of Rockland Avenue's accident history over the previous 3 years, also took part in that personal inspection of Rockland Avenue, and accompanied Retting on at least one occasion. (Retting Aff. 28) According to their studies, at least 263 accidents had occurred on Rockland Avenue during the three and one-quarter years prior to August 1986. *fn1" (Exh. H)

 As a result of the evaluation of Rockland Avenue's accident history, in and around August 1987 the City added 182 new safety signs and 280 reflectors at various points along the roadway, installed 14,000 feet of thermoplastic lane markings, reduced speed limits or posted lower advisory limits, and approved a $ 400,000 emergency contract for a capital improvement plan. The latter plan involved the erection of concrete barriers and the widening of the road along the stretch (between Brielle and Manor) where the overwhelming majority of fatalities had taken place. The decisions whether to make capital improvements (i.e., major reconstruction) on a given portion of roadway or simply to improve signage were based on the history of fatal and severe accidents along Rockland Avenue. Fiscal constraints also dictated that only priority locations receive major capital improvements.

 As part of this overall improvement plan for Rockland Avenue, the City installed additional "slippery when wet" and 20 mph advisory signs along the roadway leading up to the 916 Rockland curve. Existing "curve warning" signs were also enlarged from 36 inches to 48 inches on a side. (Albano Aff. 17-18) The City abandoned tentative plans to "scarify" (cut grooves into) the roadway, according to Retting, because grooved pavement poses steering hazards to some vehicles (such as motorcycles), and because it leads to more rapid degradation of the road surface from puddling and freezing. (Retting Aff. 92-93)

 Plaintiff has submitted to the court additional evidence relating to the accident history of the curve in question. Annexed as Exhibit D to the Shapey Affirmation is a November 5, 1980 memo prepared by the Highway Safety Officer of the 122nd Precinct which details an extremely high accident rate (12 in five months) at the site. The memo requests a traffic study, and suggests that "existing overhead flashing arrow and curve warning signs . . . are not curtailing the very high accident rate on Wet Pavement." A second memo, dated November 29, 1982, reports 26 accidents in an 11-month period, 20 of them occurring on wet pavement. (Exh. E) This memo likewise states an opinion that the existing signage was insufficient to warn motorists of the danger, and suggests, inter alia, the installation of a guardrail and scarification of the road surface. As plaintiff notes, the Retting deposition shows that these documents were never considered during the 1987 review of Rockland Avenue safety problems. According to the affidavit of John Gardynik, the resident-owner of 916 Rockland, the curve was repaved after both of these memoranda were written. (Gardynik Aff. P 6, at Shapey Aff. Exh. A)

 Plaintiff has also submitted a videotape made by Albano during a daytime Rockland Avenue drive-along inspection on September 17, 1987. (Shapey Aff. Exh. K) The tape shows the entire length of the avenue as seen by a vehicle driving in either direction, and includes Albano's narrative remarks concerning roadway features as they appear. While approaching the curve from the west (Kelly Boulevard), Albano makes the following remarks:

 We are now approaching one of our first dangerous curves on Rockland Avenue, a point which is approximately 500 feet west of Forest Hill Road. As you can see, we have recently installed over-size signs with 20 mph speed limit signs, "slippery when wet" signs, and there's also a flashing yellow light at this location. However, you can see on the right-hand side of your screen a stone wall which shows evidence of a tremendous amount of accidents at this location.

 During these comments, the tape shows a series of signs on the right-hand side of the road leading to the curve: a 25 mph sign; a large left-turn arrow sign (black on yellow, in a diamond) atop a 20 mph advisory sign; a "slippery when wet" pictographic sign atop a corresponding legend; a stack of two alternating flashing yellow lights directly above the roadway at the start of the curve; and a large reflectorized diamond (beneath a large left-arrow sign) mounted on the stone wall.

 On the return trip, Albano's comments are substantially the same, except that he observes that "accidents that have been occurring at this intersection are not as severe as what has been taking place in the other section of Rockland Avenue." In sequence, the tape also shows a series of signs mirroring those described above: a large right-turn arrow sign with 20 mph advisory; a "slippery when wet" sign (partly obscured by vegetation); and a reflectorized diamond/arrow combination atop the wall. Albano comments on the presence of the flashing lights, but they are not clearly visible on the tape.

 B. Qualified governmental immunity under New York law

 Under well-established New York Law, municipalities and other governmental entities are entitled to qualified immunity from liability for reasoned highway planning decisions. This doctrine traces its roots to the seminal case of Weiss v. Fote, 200 N.Y.S.2d 409 (Ct. App. 1960), where the Court of Appeals observed,

 To accept a jury's verdict as to the reasonableness and safety of a plan of governmental services and prefer it over the judgment of the governmental body which originally considered and passed on the matter would be to obstruct normal governmental operations and to place in inexpert hands what the Legislature has seen fit to entrust to experts.

 Id. at 413. As the Court of Appeals elaborated in Friedman v. State, qualified immunity will not shield a municipality only where "its study of a traffic condition is plainly inadequate or there is no reasonable basis for its traffic plan . . . ." 502 N.Y.S.2d 669, 674 (Ct. App. 1986) (citation omitted). In other words, "when a municipality studies a dangerous condition and determines as part of a reasonable plan of governmental services that certain ...


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