State of New York
Supreme Court : County of Monroe

- against -

Index No. 95/2153

ANDREW V. SIRACUSE, J.

All three defendants -- an engineering firm and two municipalities -- have brought summary judgment motions in this case, which arose after plaintiff's borrowed car left the roadway on Howell Street in the City of Rochester and collided with a light pole on the night of April 14, 1994. After a careful review of the extensive papers submitted on both sides and consideration of oral argument, the court holds that the plaintiff's complaint must be dismissed.

The case revolves around the design of the intersection of Howell Street and South Union Avenue, on the southeast edge of downtown Rochester. Both Howell and Union border the Inner Loop, a limited-access arterial highway that in this area runs in a trench below street level. Howell is a one-way street leading from southwest to northeast. Union is a north-south street, also one-way, leading traffic north.

Until their reconstruction Union and Howell came together at a 45-degree angle on the left side of Union Street, shortly before a left-hand entrance ramp down to the Inner Loop below grade. This merging of exiting Inner Loop traffic with entering Howell Street traffic was deemed unsafe, and in 1988 the city decided to rebuild the intersection.

The current intersection was completed in August 1990, following the design of defendant Passero Associates. The City contracted for and approved the work, but the County subsequently assumed responsibility for maintaining the roads. (This accounts for the two municipal defendants.)

Howell Street continues to approach Union Street at a 45-degree angle, but before the intersection it now turns sharply right and joins Union at a right-angle, "T" intersection. The following schematic street plans, which are not to scale and which omit several smaller streets, should give some idea of the intersection both before and after the 1990 reconstruction:

There were several signs on Howell Street: a "Stop Ahead" sign; a right curve yellow diamond, with a 10 miles-per-hour warning, on the right-hand side of the road; and two stop signs on either side of Howell where it met Union. In addition, there had been a single right arrow at the turn itself. Police photographs taken on the night of the accident show that this sign was missing. Along with these County-maintained signs the State of New York posted Inner Loop directional signs at the intersection of Howell with Monroe, and these signs had arrows denoting that the Inner Loop was straight ahead.

Few other facts about this case are undisputed. Plaintiff has no recollection of the accident or anything leading up to it. The owner of the car, a friend, testified at EBT that he and the plaintiff smoked marijuana a few hours before the accident and then spent time at a bar. He did not recall how much alcohol plaintiff consumed, but the police accident report contains no indication that the plaintiff appeared to be under the influence of alcohol or drugs. The defendants' accident reconstructionist deposed that the plaintiff was driving at 46 miles per hour when he lost control on the curve; plaintiff's reconstructionist claims that plaintiff was going only 30 miles per hour.

There is further disagreement about the status of the right arrow sign. The defendants do not claim that the sign was in place at the night of the accident, but they produce an inspection report from a few weeks earlier that contains no notation suggesting the signs on Howell Street were not in place, along with an affidavit from the County employee who performed the inspection. The plaintiff, for his part, relies on a report from 1991 stating that the right arrow was "down off the road", and challenges the County to show documents indicating any repair. It is the plaintiff's contention that the sign had been down for three years before the accident.

The County vigorously challenges this assertion, supplying a work order arising from the 1991 report which refers to the replacement of a left-arrow sign. The County claims that this was a simple slip of the pen; the paperwork referred to the sign as a W1-1 (left-arrow) sign rather than a W1-12 (right arrow). Two affidavits from County employees support this interpretation, and together with the affidavit concerning the 1994 inspection show that the sign was replaced in 1991 and was still in place until a few weeks before the accident.

Plaintiff also charges that the Howell Street curve was the scene of many accidents, and that the curb and grass in the area of the curve show signs of unreported accidents -- scuffing along the curb, tire tracks in the grass, and so on. The defendants argue that these signs are ambiguous, and could be caused by any number of causes other than accidents; and they note that although four accidents were reported during the construction period, none had taken place since construction was completed. This absence of reported accidents between the end of construction and the mishap at hand is also undisputed.

The absence of the sign is one of the plaintiff's main points. The other is the alleged "channeling" effect of the view from the first part of the street. The plaintiff maintains that the Inner Loop and Union Street lights, the absence of vegetation blocking the view up Howell Street towards the lights, the Inner Loop signs, and the stop sign visible in the distance on the left hand side of Howell all combine to create the impression that Howell proceeds straight ahead. At night time, he argues, drivers are deluded into thinking that the street is straight, and because of this misperception he was unprepared for the unmarked (or poorly-marked) curve

. The defendants' motions will now be considered in turn. Passero and Associates, the design firm, has moved to dismiss because there was no showing that the design and construction of the curve was professional negligence; it was carried out in accordance with accepted professional standards. The court agrees. There is nothing inherently improper about building a curve which cannot be negotiated at high speeds or which requires warning signs. The plaintiff has presented no evidence that the design in any way violated professional standards when signed as recommended

. The motions by both City and County rely heavily upon the doctrine of limited governmental immunity. This is a principle of long standing, and was recently reiterated by the Fourth Department:

Although a municipality owes an absolute duty to keep its highways in a reasonably safe condition (see, Friedman v. State of New York, 67 NY2d 271, 283; Weiss v. Fote, 7 NY2d 579, rearg. denied 8 NY2d 934), it is afforded a qualified immunity from liability arising out of highway planning decisions (Friedman v. State of New York, supra, at 283; Alexander v. Eldred, 63 NY2d 460, 465-466; Weiss v. Fote, supra, at 585-586). A municipality may not be held liable "absent some indication that due care was not exercised in the preparation of the design or that no reasonable official could have adopted it" (Weiss v. Fote, supra, at 586) (Urbaniak v. Town of Clay, __AD2d__, 654 NYS2d 897 [4 Dept., 1997]).

There is nothing here that suggests such a failure, and the plaintiff's unavailing search for accidents at the site of the present one is further support for the defendants' position. In spite of the suppositions and speculations about the curb scarring and other "signs" of unreported accidents, the plaintiff is up against clear law such as this:

Nor do we find persuasive claimant's contention that an unjustified delay in the formation of a remedial plan for the intersection cast the State in liability. The record shows that all aspects of the intersection were carefully studied, some proposals made and implemented, while others such as the left turn lane were considered but not adopted. The cases urged by claimant as controlling, particularly Friedman v. State of New York, 67 NY2d 271, supra, are distinguishable and inapposite. 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 giving rise to this lawsuit. 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 which caused the instant accident (Hough v. State, 203 A.D2d 736, 738-9 [3 Dept]).

Plaintiff has failed to meet this standard. Further, he has failed to show that the County or City were remiss in any duty to maintain the roadway in safe condition or to review its safety in the light of experience. Contrary to his arguments, this case may be easily distinguished from Atkinson v County of Oneida (77 AD2d 257), where the plaintiff produced "[e]vidence that physical conditions at the intersection had changed, that the 1969 'signing' was proving inadequate, and that an inordinate number of accidents had occurred at the intersection" (supra, at 261). Here the conditions on the roadway had not changed since 1990; there were no indications that the signs were proving inadequate beyond the ambiguous scuffing of the curb, and there were no reported accidents at all -- in contrast to the facts in Atkinson, where there had been eight accidents, including one fatality, in the eight years the intersection had been in its then-current form.

Because of this failure of proof the plaintiff's claim that the environment produced a dangerous "channeling" effect is without merit. Even assuming such an effect existed, the County would have had no notice of it in the absence of reported accidents. The plaintiff is asking that the Court impose a duty that all streets and roads be continuously redesigned and rebuilt to the utmost degree of safety. This is unacceptably close to the insurer's liability that the Court of Appeals rejected in Weiss v Fote.

The only remaining basis for placing liability on the County arises from the missing right arrow sign, but the plaintiff has failed on this head as well. The evidence does not permit the conclusion that the sign had been missing since 1991; the affidavits by the County are explicit and are uncontradicted by anything except the palpably erroneous work report. While the sign was clearly missing on the night of the accident, it is still incumbent upon the plaintiff to show actual or constructive notice of an alleged dangerous condition, as the defendants have presented a prima facie case tht the intersection was neither designed nor maintained in a negligent fashion (see, Anderson v Klein's Foods, 73 NY2d 835; Milea v Ames Dept. Store, Inc., 219 AD2d 798 [4th Dept]; Ward v Lawrence, 225 AD2d 688 [2d Dept]). Merely showing that one existed on the night of the accident does not create a question of fact as to its existence so far in the past as to give rise to constructive notice. For these reasons the complaint must be dismissed. Counsel for the County is to prepare the order, with a single bill of costs to be divided among the defendants.

DATED: Rochester, New York

December 8, 1997

Andrew V. Siracuse, J.S.C.

Affirmed for the reasons stated herein by the Appellate Division, Fourth Department, on October 1, 1999.

Design © 1997 Michael Steinberg. No copyright subsists in the decision texts, which are government documents.

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