133 A.D.2d 974 | N.Y. App. Div. | 1987
Appeal from a judgment of the Court of Claims (Hanifin, J.), entered March 28, 1985, which dismissed the claim.
Claimant was severely injured in a one-car accident which occurred on Route 357 in the Town of Franklin, Delaware County, at about 5:00 a.m. on October 24, 1981. He was one of three passengers in the vehicle, driven by Robert Rowell en route back from claimant’s engagement as a member of a band playing in a local tavern in the Village of Pine Hill, Ulster County, the preceding evening. The car went off the road at a left-hand curve, continued in a path over the recessed headwall of a culvert and struck a tree located some 12 feet from the edge of the road. One of the other passengers was fatally injured in the crash. Rowell testified that he had been awake for some 20 hours before the accident occurred and had consumed a six-pack of beer at the bar where claimant played that night. Although he was familiar with the roadway, he failed to negotiate the curve while his attention
Route 357 is a rural, lightly traveled road, constructed in 1928 and designated as a class C highway. It consists of two 10-foot paved lanes with shoulders partially paved to a distance of about three feet. The stretch of Route 357 where the accident occurred had been the subject of a resurfacing project completed earlier in 1981. The center and edge lines of the highway had been repainted in the course of the project. At the curve in question, the State had installed traffic control and safety measures consisting of a posted 45 miles per hour reduced speed sign, a curve sign, a left arrow sign at the curve, a diamond-shaped culvert marker and reflectorized delineators. The left arrow sign had been recently added as the result of an investigation made in response to a complaint from an adjoining property owner, following a fatal accident at the curve in June 1981.
Claimant posited the liability of the State on his traffic safety expert’s testimony of its negligence in ignoring or failing to recognize and rectify or protect against the hazards of the sharpness and deceptiveness of the curve, the excessive drop-off from the paved to the earthen portion of the shoulder, the recessed headwall of the culvert and the tree in close proximity to the roadway which the vehicle struck. Claimant sought to establish that the State was on notice of these hazards from the analysis of the relevant section of Route 357 done by the Department of Transportation prior to the resurfacing project, the happening of the June 1981 accident, in which a car also left the road and struck a tree in the vicinity of the tree involved in the instant accident, and the investigation thereof following the previously described complaint. Claimant’s expert opined that the State should have restructured, rather than merely repaved, the road section in order to eliminate or ameliorate the curve; failing that, a guide rail should have been erected at the curve to shield the culvert, the tree should have been removed, the speed at the curve should have been reduced to 35 miles per hour and chevron signing of the curve rather than a single arrow should have been installed.
From our reading of the record, the weight of the evidence supports the findings of the Court of Claims that the State did
The decision not to modify the curve by highway reconstruction and to fix the posted speed at 45 miles per hour was made deliberately after considering a thorough analysis of the accident record of the section of Route 357 involved, the existence of numerous roadside obstacles, the relative costs and fiscal priorities, and appropriate testing establishing the safe speed for negotiating the curve. While claimant’s expert disagreed with the conclusion of the State’s highway engineers, such judgmental decisions are precisely the kind which are clothed with qualified governmental immunity under Weiss v Fote (supra, at 585-586). There has been no showing that the State’s deliberative process concerning the resurfacing project was inadequate or that its repaving and resigning plan lacked a reasonable basis (see, Friedman v State of New York, 67 NY2d 271, 284).
The foregoing disposes of all of the issues other than that of the adequacy of the State’s response to notification of the June 1981 accident at the curve and particularly its failure to remove the tree struck by the vehicle in which claimant was a
Nor did the failure to direct removal of the tree near this older, rural highway render the modified traffic plan unreasonable, in view of the conclusions reached as to the causes of the prior accidents (see, Tomassi v Town of Union, supra, at 97). It is also noteworthy that the uncontested evidence was that the aggregate warning signing at the curve conformed to the State Manual of Uniform Traffic Control Devices (cf., Alexander v Eldred, 63 NY2d 460, 466).
Judgment affirmed, without costs. Mahoney, P. J., Main, Yesawich, Jr., Levine and Harvey, JJ., concur.