126 A.D.2d 139 | N.Y. App. Div. | 1987
OPINION OF THE COURT
These claims were commenced to recover damages for personal injuries to claimant Jane F. Kissinger (hereinafter Kissinger) and for property damage to the automobile owned by her mother, claimant Eva M. Kissinger, as the result of a one-car accident on October 30, 1981. At approximately 5:00 a.m., while driving in the southbound lane of Route 30A in the Town of Mohawk, Montgomery County, Kissinger fell asleep at the wheel, left the road and struck a house owned by Barbara Ann Telfar. Claimants both predicate liability upon the State’s alleged negligence in failing to design, construct and maintain Route 30A in a reasonably safe condition, more particularly, in failing to install and maintain a guardrail in
It is well established that the State is required to maintain its roads and highways in a reasonably safe condition (see, Matter of Friedman v State of New York, 67 NY2d 271, 283; Tomassi v Town of Union, 46 NY2d 91, 97). This duty extends to the furnishing of safe guardrails (see, Lattanzi v State of New York, 53 NY2d 1045, affg 74 AD2d 378; Van Son v State of New York, 116 AD2d 1013, 1014; Matter of Kirisits v State of New York, 107 AD2d 156, 158-159). The State, however, is not an insurer and pursuant to the qualified immunity doctrine set forth in the seminal Weiss case, "liability for injury arising out of the operation of a duly executed highway safety plan may only be predicated on proof that the plan either was evolved without adequate study or lacked reasonable basis” (Weiss v Fote, supra, at 589; see, Cordts v State of New York, 125 AD2d 746; Schwartz v New York State Thruway Auth., 95 AD2d 928, 929, affd 61 NY2d 955). Claimants maintain that the Court of Claims erred in affording the State immunity under this standard. We disagree.
In so deciding, we first observe that where, as here, a case is tried without a jury, our power of review is not limited to whether the trial court’s findings of fact are supported by some credible evidence; this court may instead grant the judgment warranted by a reasonable assessment of the evidence, giving due consideration to the trial court’s advantage of seeing and hearing the witnesses first hand (see, Cordts v State of New York, supra; Arnold v State of New York, 108 AD2d 1021, 1023, appeal dismissed 65 NY2d 723).
In 1976, a regional office of the Department of Transportation (hereinafter DOT) initiated a request to improve Route 30A in the immediate vicinity of the Telfar residence by adding a truck-climbing lane on the northbound portion of the highway and flattening out the curve (which turned to the left for southbound traffic). A period of review ensued between DOT’S regional office, DOT and the Federal Highway Administration (hereinafter FHWA), and design approval for the project was granted in September 1978. Construction took
Contrary to the findings of the Court of Claims, claimants maintain that there is no evidence that either DOT or FHWA ever reviewed the decision to remove and not replace this guardrail, and in any event, the failure to replace the guardrail was in contravention of the State’s own safety standards. We disagree. Upon reviewing this record, there is little question that the instant project to reconstruct Route 30A was the subject of extensive and time-consuming review on the part of DOT’s regional office, DOT and FHWA. Although the State’s two witnesses at trial were unfamiliar with the design process involved in this project, a history was provided through the deposition testimony of Edward Schmidt, a civil engineer employed by DOT’s preliminary planning review bureau, who participated in the design review of the instant project.
It is not the function of this court to substitute our views for that of the governing municipality where a reasoned study is demonstrated (see, Muller v State of New York, 108 AD2d 181, 188-189, read, on other grounds 67 NY2d 271). A careful review of the testimony and documentation prepared by DOT’s re
Nor can we agree with claimants’ assertion that the State’s failure to replace the guardrail in question was inherently unreasonable. This issue centers on the proximity of the Telfar residence to Route 30A. The Court of Claims determined that the northeast corner of the house was set back 29 feet from the southbound lane, and the southeast corner was set back 25.75 feet. Claimants maintain that this setback was insufficient since chapter 10.00 of the State’s highway design manual requires the placement of a guardrail where a dangerous fixed object (the Telfar house) is situated within 30 feet of the road.
By its own terms, chapter 10.00 of the manual is to be applied to the "fullest extent possible” in urban and suburban areas. Schmidt testified that the clear zone requirements set forth in the design manual were not mandatory on this project, since this was neither new construction nor major reconstruction. He explained that the placement of a guardrail is a matter of engineering judgment. Factors considered include the accident history of a location and, in this instance, a comparison of the degree of hazard posed by the Telfar house versus a guardrail, which in itself poses a roadside hazard. Pertinent here is a July 3, 1978 memorandum from DOT’S regional design engineer, P. A. Barnes, to Schmidt, that due to the low concentration of accidents on the subject highway, there was no need for "any special mitigative measures at any particular location”. Considering the improvements made on this curve and the minimal accident history, we cannot say that the State’s planning decision not to replace the guardrail was inherently unreasonable. Accordingly, the Court of Claims properly dismissed the claims (see, Chionchio v New York State Thruway Auth., 112 AD2d 610; Boyd v State of New York, 103 AD2d 882, 883, supra; Schwartz v New York State Thruway Auth., 95 AD2d 928, supra).
Casey, J. P., Mikoll, Yesawich, Jr., and Harvey, JJ., concur.
Judgments affirmed, without costs.
. At the apparent direction of the Court of Claims, this deposition was actually held some nine months after the trial testimony was taken. It further appears that the court admitted Schmidt’s "examination before trial” into evidence over claimants’ objection, along with all the exhibits documenting the project history.
. Claimants produced further evidence that the 30-foot clearance area related to straight highways (see, Boyd v State of New York, 103 AD2d 882) and that the American Association of State Highway and Transportation guidelines call for a 71-foot clearance zone on a curve of the type in dispute.