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Linda M. Brown, As Administratrix of the Estate of Wayne Brown, Deceased v. the State of New York

December 30, 2010

LINDA M. BROWN, AS ADMINISTRATRIX OF THE ESTATE OF WAYNE BROWN, DECEASED, CLAIMANT-APPELLANT,
v.
THE STATE OF NEW YORK, DEFENDANT-RESPONDENT.
LINDA M. BROWN, CLAIMANT-APPELLANT, THE STATE OF NEW YORK,
DEFENDANT-RESPONDENT.



Appeal from a judgment of the Court of Claims (Nicholas V. Midey, Jr., J.), entered August 8, 2008. The judgment dismissed the claims for personal injury and wrongful death.

Brown v The State of New York

Appellate Division, Fourth Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 30, 2010

PRESENT: CENTRA, J.P., PERADOTTO, CARNI, LINDLEY, AND SCONIERS, JJ.

It is hereby ORDERED that the judgment so appealed from is modified on the law by granting that part of the post-trial motion with respect to the issue of proximate cause and as modified the judgment is affirmed without costs, and the matter is remitted to the Court of Claims for a determination on the issue of proximate cause in accordance with the following Memorandum: Claimant commenced these consolidated actions, individually and as administratrix of the estate of her husband (hereafter, decedent), seeking damages for her injuries and his wrongful death resulting from a right-angle motor vehicle accident in an intersection. At the time of the accident, decedent was operating a motorcycle north on State Route 350 (Route 350), near the intersection of Paddy Lane in the Town of Ontario, and claimant was a passenger on that motorcycle. The posted speed limit on Route 350 in that area was 55 miles per hour. William Friend was contemporaneously operating a pickup truck east on Paddy Lane. After stopping at the stop sign at the intersection of Paddy Lane and Route 350 (intersection), Friend looked both ways down Route 350 and then proceeded to drive his vehicle straight across Route 350 at an approximate speed of five miles per hour. Before safely reaching the other side of Route 350, Friend experienced what he described as a "ground explosion." It is undisputed that what Friend was in fact experiencing was a collision between his vehicle and decedent's motorcycle while the vehicle driven by Friend was still crossing the intersection. Friend indicated that, although he looked in both directions, he never observed decedent's motorcycle at any time prior to the collision in the intersection.

According to claimant's pleadings, the intersection "has a long history of motor vehicle accidents due to a negligent and improper design of the intersection; excessive speed limit for Route 350 relative to the topography of [that road] south of the intersection . . .; [and] inadequate posting of signs and/or lack of signs including but not limited to flashing warning signs." Claimant further alleged that defendant had been "warned of the dangerous nature of the intersection . . . and . . . negligently failed to take any action to reduce [its] apparent dangerous nature." In its answer to each claim, defendant asserted the affirmative defense of governmental immunity (see Weiss v Fote, 7 NY2d 579, 588, rearg denied 8 NY2d 934). Following a trial, the Court of Claims concluded that defendant was not entitled to governmental immunity pursuant to Weiss v Fote inasmuch as defendant abandoned its study of the intersection that began approximately four years prior to the accident.

Nevertheless, the court concluded that claimant was required to establish that defendant's "failure to complete [the] intersection safety study was a proximate cause of the accident forming the basis of [the] claim[s]." The court determined that claimant failed to meet that burden and dismissed the claims. In denying claimant's post-trial motion to set aside the decision and for a new decision pursuant to CPLR 4404 (b), the court explained that in its original decision it found that defendant "had notice of a dangerous condition and had failed to take reasonable measures to remedy that condition" and determined that defendant's failure "to implement a safety plan for [the] intersection within a reasonable period of time was not a proximate cause of the accident . . . ."

We note at the outset that, although claimant appeals from the court's "[d]ecision and [o]rder," that document is only a decision from which no appeal lies (see Pecora v Lawrence, 28 AD3d 1136, 1137). We nevertheless exercise our discretion to treat the notice of appeal as valid and deem the appeal as taken from the judgment entered in these consolidated actions (see CPLR 5520 [c]; Ponzi v Ponzi, 45 AD3d 1327; Hughes v Nussbaumer, Clarke & Velzy, 140 AD2d 988). On appeal, claimant contends that the court applied an inappropriate breach of duty, negligence and proximate cause analysis. Claimant further contends that, in the undisputed absence of any Weiss v Fote issues, her burden at trial was limited to establishing that the intersection presented a dangerous condition of which defendant had notice and that the dangerous condition was a proximate cause of the accident, claimant's injuries and the death of decedent. We agree and conclude that, inasmuch as the court incorrectly applied elements of the Weiss v Fote doctrine to the negligence and proximate cause analysis after determining that defendant was not entitled to the benefits of that doctrine, the matter must be remitted to the Court of Claims for a proximate cause determination that utilizes the proper standard.

There are certain undisputed facts that guide our analysis. First, defendant abandoned any study that had been undertaken with respect to the conditions of the intersection and the speed limit for vehicles approaching the intersection while traveling on Route 350. Second, no study or plan was underway at the time of the accident. Third, defendant did not present any evidence at trial establishing that the design andsignageof the intersection on the date of the accident was the product of any prior study or plan. Therefore, inasmuch as the evidence established that the signage, configuration and sight distance of the intersection, together with their interaction with the approaching speed limit on Route 350 (see e.g. Vega v State of New York, 10 Misc 3d 822, 829-830, affd 37 AD3d 825, lv denied 9 NY3d 812), were not "the product of a governmental plan or study," the doctrine of Weiss v Fote and all of its component parts "do[] not apply" to the analysis of this appeal (Cummins v County of Onondaga, 198 AD2d 875, 877, affd 84 NY2d 322). Defendant therefore correctly concedes that it is not entitled to governmental immunity pursuant to Weiss v Fote.

However, notwithstanding its rejection of defendant's Weiss v Fote defense, the court proceeded to reintroduce elements of the Weiss v Fote doctrine into the analysis when it concluded that claimant's burden of proof still required claimant to establish that the "failure to complete [the] intersection safety study was a proximate cause of the accident." That was error. The appropriate inquiry was whether defendant was made aware of a dangerous condition and failed to take action to remedy it and whether the dangerous condition was the proximate cause of the accident (see Posman v State of New York, 117 AD2d 915, 917).

Claimant established at trial that, prior to the accident in April 2003, the Department of Transportation (DOT) received accident history data from the State Accident Surveillance System, which indicated that at least 17 right-angle accidents involving failure to yield the right-of-way as a contributing factor occurred at the intersection between August 1996 and June 2002. In six of those accidents, the drivers reported that they stopped on Paddy Lane but did not see the oncoming vehicles on Route 350 before the accident. Defendant's traffic safety engineering expert testified that "the pattern of right-angle accidents involved . . . people coming to the stop sign on [Paddy Lane] and then entering the intersection." In a 1999 resolution, the Ontario Town Board asked the Wayne County Superintendent of Highways to request that the DOT reduce the speed limit on Route 350 from 55 miles per hour to 45 miles per hour and "review the feasability of installing a blinking caution light at the intersection." It is undisputed that, in response to that data and the resolution, defendant did not reduce the speed limit on Route 350 approaching the intersection, nor did it change the design or signage of the intersection. Claimant's traffic engineering expert testified that a vertical curve in Route 350 south of the intersection, combined with the speed limit on Route 350 of 55 miles per hour, were relevant factors in the right-angle accident pattern and that the dangerous condition of the intersection and the pattern of accidents could have been remedied by the installation of four-way stop signs. Although defendant contends that certain incremental steps would have been attempted at the intersection prior to the installation of four-way stop signs, defendant took none of those steps. Defendant offered no evidence that the intersection was "reasonably safe" as configured or that it complied with any highway engineering standards at the time it was built or at the time of the accident. The fact that defendant failed to complete any study of the intersection belies its contention that one or more incremental steps were necessary before four-way stop signs would be installed.

It is well settled that, "[i]f the conditions were substantially the same, evidence of prior accidents is admissible: first, to show the dangerous condition [that] caused the accident; and second, to prove that the [entity] responsible had notice of such conditions" (Prince, Richardson on Evidence ยง 4-622 [Farrell 11th ed]). "It was incumbent upon claimant 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 to the accident [in question]. In addition, the burden upon claimant required her to prove that prior accidents of a similar nature were caused by the same or similar contributing factors [that] caused the instant accident" (Hough v State of New York, 203 AD2d 736, 738-739). The evidence amply demonstrated that defendant's design of the intersection with two-way stop signs had proven inadequate in light of the accident history (see Posman, 117 AD2d at 917). When defendant is made aware of a dangerous highway condition and does not take steps to remedy it, defendant can be held liable for the resulting injuries (see ...


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