STEPHEN J. MIGNANO
Synopsis
Claimant's legs were severed during an automobile accident in which the intoxicated driver was going approximately 102.5 mph. when he lost control and slammed the automobile into a median guide rail. The guide rail broke apart, the driver was killed, and the passengers, including claimant, were injured. After a three day liability trial, the court found the State not liable for negligent maintenance of the guide rail.
Case information
| UID: |
2017-029-037 |
| Claimant(s): |
MATTHEW FERBER |
| Claimant short name: |
FERBER |
| Footnote (claimant name) : |
| | | Defendant(s):
THE STATE OF NEW YORK |
| Footnote (defendant name) : |
The caption has been amended to reflect the properly named defendant. |
| Third-party claimant(s): |
| | | Third-party defendant(s):
| | | Claim number(s):
123342 |
| Motion number(s): |
| | | Cross-motion number(s):
| | | Judge:
STEPHEN J. MIGNANO |
| Claimant's attorney: |
SMILEY & SMILEY, LLP By: Guy Smiley, Esq. and Andrew Smiley, Esq. |
| Defendant's attorney: |
ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL By: J. Gardner Ryan, Assistant Attorney General |
| Third-party defendant's attorney: |
| | | Signature date:
June 1, 2017 |
| City: |
White Plains |
| Comments: |
| | | Official citation:
| | | Appellate results:
| | | See also (multicaptioned case)
| Decision
The claim arose at approximately midnight on February 2, 2013, when an intoxicated 20-year-old, driving at approximately 102.5 miles per hour ("mph"), lost control of the vehicle and slammed into a median guide rail on Route 17 in Goshen, New York. The driver was killed, claimant's legs were severed, and the other two passengers sustained injuries. Claimant is seeking damages for his injuries, which he asserts were proximately caused by the State's negligent maintenance of the guide rail. The court held a trial on liability from January 24-27 and January 30, 2017. After both parties rested, defendant moved for an adverse inference to be drawn from claimant's failure to testify, though he was present throughout trial. The court reserved on the motion.
Claimant presented the following witnesses: Sergeant Erik Anderson, Dominick Crasa, Sergeant Christopher Viola, Richard Gaupman, Peter Schick, Jeffrey Drake, expert Simon Bellemare (metallurgy) and expert Edward Denehy (engineering). Defendant presented the following witnesses: expert Karl Puttlitz (metallurgy) and expert Nicholas Pucino (engineering).
Claimant did not testify during his direct case. Counsel stipulated to admission into evidence of a statement made by Chelsea Gallagher, the passenger in the front seat at the time of the accident, in lieu of either side calling claimant to testify at trial (1/25/17 T: 339-343). The statement was admitted into evidence as Exhibit P. After entering the statement on the record, defendant's counsel stated he was reserving the right to seek an adverse missing witness inference.
T:[#] refers to relevant pages of the trial transcript.
The following exhibits were admitted into evidence on stipulation: Claimant: 1-17, 27, 28, 29 and 34; Defendant: A, B1, B2, B3, C, E, G and J (photographs) (T: 15, 59). Defendant conceded that the accident resulted in the severing of claimant's legs, but not to what caused the severing (T: 73). The parties also stipulated to admission of a power point presentation as Exh. 35 for demonstrative purposes only (1/25/17 T: 430-434).
Claimant's witness Jeffrey Drake prepared the power point.
The following additional exhibits were admitted into evidence: claimant's exhibits 18-26, 36, 40-41, 43-44; and defendant's exhibits F, N-U
Claimant's Exhibits 25 and 26, photographs of the guide rail taken in a prior accident, were admitted provisionally subject to authentication, which was provided (1/30/17 T: 1294-1295).
Claimant called Sergeant Erik Anderson who testified that he has been employed by New York State as a trooper since 2008. In 2012 he trained and became certified as a collision reconstructionist. He was the lead collision reconstruction trooper investigating claimant's accident on February 1-2, 2013 (1/24/17 T: 47-48).
After responding to the scene of the accident with Trooper Desmond Lewin, Sgt. Anderson found claimant on the ground near the median guide rail. His legs had been severed and he was screaming in pain (1/24/17 T: 56-58). Anderson conducted an on-scene investigation and observed that a portion of the median guide rail was "damaged and broken," "separated in one location," "bent slightly one way towards the westbound lanes of traffic, and there was crumpled metal from the vehicle on [the] exposed portion of guide rail." Prior to this accident, he had not seen an accident in which a guide rail broke apart and protruded into a vehicle's passenger compartment (1/24/17 T: 54-56).
He identified the following photographs, inter alia: Exh. J, Nos. 6909, 6910, 7016 as photos of the crash scene that night. Exh. J, Nos. 6924, 6928, 6930, 6934 as photos of the progression of the vehicle to its resting place. Exh. J, Nos. 6937 shows the damaged vehicle and damage caused when the guide rail broke and went through the vehicle. Exh. J, No. 7016 shows where the vehicle was in contact with the guide rail while traveling eastbound (1/24/17 T: 62-67, 70-71, 75-80).
Sgt. Anderson prepared a written Collision Reconstruction Report (Exh. 27: "Report") based, in part, upon the Crash Data Retrieval ("CDR") in the accident vehicle. According to findings in the Report: the brakes were not applied before impact; data from the vehicle showed that four seconds before "Algorithm Wake-up" the vehicle was traveling at a speed of 103 mph with 100% "Accelerator Pedal Position," and at one second before, the vehicle was traveling at a speed of 102.5 mph with 92% "Accelerator Pedal Position"; the vehicle traveled approximately 41.9 feet eastward down the guide rail before the rail, at which point a portion of the rail protruded into the driver's side of the vehicle. The vehicle then continued traveling eastward for approximately 94 feet, rotating counterclockwise, then came to a rest. However, there was not a full "accident reconstruction" in this matter. Anderson did not have enough tire mark evidence to determine the exact angle at which the vehicle hit the guide rail. A critical speed yaw analysis could not be done. Anderson estimated that the vehicle was traveling between 98.2 and 102.5 mph when it hit the guide rail (1/24/17 T: 89-91, 94, 146). As a result, much of the expert testimony on both sides was based upon inference or "probability."
The Report section titled "Driver History" contained the following findings concerning the deceased driver, John Behler: on the night of the accident, he was 20 years old; his blood alcohol content was 0.29 percent; his driver's license had been revoked on September 26, 2012 for Driving While Intoxicated; and he had been issued a conditional license with a restriction of an ignition interlock device (Exh. 27: 8). The Report concluded that the "primary contributing factor" in the accident was "unsafe speed," with "[a]lcohol involvement" as an "additional contributing factor" (Exh. 27: 9).
Richard Gaupman testified that he has worked for the Department of Transportation ("DOT") since 1992, first as an Engineer and, since 2009, as the Resident Engineer in Region 8 of Western Orange County. Gaupman is responsible for the maintenance of State Roads 17, 17A, 210, 94, 211, 17M, 52, 302 and 17K. These roads amount to 685 lane miles. Among his duties is overseeing maintenance of the "box beam" median guide rail on Route 17 in the vicinity of Exit 125. Due to limited resources, DOT cannot repair everything that gets hit on an immediate basis (1/24/17 T: 242-246, 253; 1/25/17 T: 343-345).
He referred to the guide rail as a "weak post system" consisting of steel beams in various lengths (the guide rail). Guide rail posts are driven into the ground every six feet. Support paddles bolted to the posts fit into slots in the beam, which sits on top of the paddles. The beams are linked together with 8 inch by 27 inch splice plates bolted to the ends of the two beams. When the guide rail is hit, the system deflects and the posts are supposed to bend and slow the vehicle down (1/24/17 T: 245-250; 1/25/17 T: 348-350). Before claimant's accident, he had not seen a guide rail break apart "the way it did." He was not aware of DOT standards requiring regular inspection of the guide rail, and DOT did not have a regular practice of doing so from 2009 until February 1, 2013 (1/24/17 T: 248-250).
Similarly, Sgt. Viola testified that in his 16 years of patrolling the highways of Orange County, he had not seen an accident involving a guide rail penetrating into a vehicle (1/24/17 T: 237).
After his office received MV-104s from DOT's regional office in Poughkeepsie, he and his assistant would respond to the area of the accident to assess the damage, then bill the insurance company (1/24/17 T: 254-255). They would do a visual inspection of the beam and the posts and paddles, not just drive by the site without getting out to inspect (1/24/17 T: 278-279).
Gaupman could not recall inspecting an accident on September 5, 2012, in which a vehicle struck the guide rail on Route 17 by Exit 125 (the Torabi accident), but his office prepared an invoice, indicating they had inspected the site. The worksheet they created after inspection showed that four posts and paddles needed replacing, but no section of guide rail because at the time he did not think it was needed. If he had seen a section of guide rail that needed replacing, that was too bent to fit back onto the posts, he would have noted it on the worksheet (Exhs. 34, 39 [Torabi and 8 other MV-104s and invoices]; 1/24/17 T:256-263, 278-279, 304-308). In response to the question whether he would replace a guide rail if he saw a crack in it, Gaupman said "correct," and he agreed that DOT would be required to replace it (1/24/17 T: 283).
Gaupman's crew made repairs, but they also used outside contractors. DOT received other MV-104s showing vehicle impacts with the guide rail in the vicinity of Exit 125. In eight of them, ranging from 2009 to 2012, repairs were not undertaken until the end of 2012. DOT issued a "purchase order" in July 2012 and hired an outside contractor to make repairs to an approximate two-mile stretch of guide rail on Route 17. Gaupman and his assistant, Peter Schick, walked the entire stretch to assess needed repairs to the guide rail, posts and beam (1/24/17 T: 303-305; Exh. 34). They had a $50,000 cap to repair as many posts as possible in that stretch. They rejected a bid that added $25,000 for rail replacement on top of the cost of post replacement. They awarded the job to the lowest bidder in October 2012 (Exh. M). If during their work the contractor considered it necessary to replace a guide rail section, they reported it to Schick, who was the "field rep." They would discuss it and the guide rail section would be replaced if necessary. In fact, the contractor recommended replacing some sections of guide rail closer to exit 122A, which occurred. They would not overlook a visible crack. There was no limitation as to what could be repaired if there was damage to a guide rail. However, the $50,000 ran out before the retained contractor could replace all the damaged posts listed in its contract (Exhs. 24, L; 1/24/17 T: 264-283, 308, 317-318, 1/25/17 T: 359-367, 378-379).
Although the exact points of impact could not be established, Gaupman agreed that the Behler accident occurred in the general vicinity of the Torabi accident. One used reference marker 1135 and the other used 1136. The markers are 528 feet apart (1/24/17 T: 270-271).
John "Behler" refers to the decedent driver of the vehicle in which claimant was a passenger.
On cross-examination, Gaupman testified that he had 64 people working under him. If any of them saw damage they would have reported it. During his walk-through of the guide rail between Exits 122 and 125, he and Schick walked on the median on alternating sides of the barrier. Generally, they would inspect the guide rail and system at the location of a reported accident to determine the extent of any damage. Otherwise they would drive the 685 lane miles of highway that he was responsible for maintaining approximately three times a week and check for things like potholes, fallen signs, brush, anything affecting sight distance, downed trees or guide rails and other damage. He asserted that he would not have overlooked a cracked guide rail (1/25/17 T: 343-353, 364-368).
Peter Schick testified that he has been employed by DOT for 22 years, spending the last 12 years as the Assistant Resident Engineer at Middletown highway maintenance in Residency 8-5. He had no formal training in maintaining guide rails. In 2012 he was Gaupman's assistant. They followed the "Accident Damage Recovery Process" after receiving an MV-104 Report, which involved going to the accident site to see what damage had occurred, like post damage and a bent rail or beam. Generally, if Schick saw a crack in the guide rail it would be replaced, but if the guide rail could be reset on the posts it would not be replaced. Sometimes they did not get out of the vehicle and instead looked at the guide rail through the vehicle window. If the guide rail was bent, they investigated further (1/25/17 T: 381-386).
Schick also did not recall responding to a MV-104 Report of an accident on September 5, 2012 in which a vehicle struck the guide rail on Route 17 by Exit 125 (the Torabi accident). He did recall that in August or September 2012 they walked from Exit 122 to Exit 125 on Route 17. The focus was on counting posts in need of replacement. He did not recall Gaupman inspecting the guide rail itself. Schick marked where posts should be replaced, first with ribbon then with white paint. They hired the contractor Elderlee for the replacement job, not to inspect. Schick was at the site every day. Two sections of beam were replaced because they could not be reset on the posts. Schick had also not seen a guide rail completely break apart as a result of a passenger vehicle collision (1/25/17 T: 387-395).
During his walk-through with Gaupman, Schick painted a white mark on top of a beam to identify where a post needed replacing. Guide rails are about hip-high. He could not help looking at the beam when he marked it. At times they walked on both sides of the rail. Any deformation would require a closer inspection. He testified that if there had been a crack near where he painted the mark, he would have seen it (1/25/17 T: 397-411; Exh. J-7072 [photo of guide rail with paint mark and crack near it]).
New York State Police Investigator Dominick Crasa testified about an accident that occurred five months earlier involving the same guide rail (the Torabi accident). Crasa reported on his MV-104 that the Torabi accident caused damage to the center guide rail (Exh. 31; 1/24/17 T: 199-200). Crasa testified that he could only estimate the angle at which the Torabi vehicle hit the guide rail; he did not know its speed; he gave the driver a ticket for driving in excess of a reasonable speed for the weather conditions (a downpour) because the driver had lost control of the vehicle (1/24/17 T: 197-199). DOT sent an invoice to the driver for the cost to repair and replace four posts and four paddle inserts, but not for any repairs to the guide rail (1/214/17 T: 263).
Simon C. Bellemare, Ph.D., PE, was accepted by the court as an expert in the field of metallurgy and materials analysis (1/25/17 T: 445-446).
In Bellemare's opinion, the guide rail broke apart when it was impacted by the Behler vehicle because there was a pre-existing crack created by the Torabi accident and that the Behler impact alone could not have resulted in enough force to break the guide rail apart. Bellemare also opined that the crack resulting from the Torabi accident would have been visible to the naked eye and "readily visible" to anyone looking at the guide rail from the east side (1/25/17 T: 518-519, 552, 544; Exh. 36).
Bellemare described what he relied on in formulating his opinion. He viewed photographs provided by claimant's counsel. He also went to the DOT yard in April 2015 where he inspected the guide rail in this case, took photographs, and cut out pieces of the metal, which he inspected under a digital microscope at Massachusetts Institute of Technology (1/25/17 T: 468-469, 556, 585).
Bellemare testified to his opinion that the impact from the Torabi vehicle created a crack in the guide rail by concentrating all of the energy at one point, causing compression on the westbound side of the guide rail and tension on the eastbound side. In his opinion, this crack began from the underside of the guide rail where the paddle was inserted and continued up and across the top of the guide rail. There was also protruding steel created by this pre-existing crack, which he concluded was "plowed" onto the opposing fracture surface when the Behler vehicle impacted the guide rail at the location of the pre-existing crack. The fracture started just to the downstream side of the paddle hole, then went up and across the guide rail then transitioned into a different type of load he called a "load reversal." He opined that the crack would have been "readily visible" to the naked eye (1/25/17 T: 494, 518-519, 544, 552; Exhs. 35 [slides 60, 65, 67-71], 36 [Images 2.6, 3.3].
On cross-examination, Bellemare opined that a crack would appear on the surface of a guide rail, whereas a fracture is a total separation (1/25/17 T: 593). After the Behler accident, the 36 foot beam had six cracks in the four sections of the beam. There were two cracks at the splice - one on the interface with the top face and the other with the lower face. The third one was three feet eastward, coming from the slot hole. The fourth one was nine feet east of the third, and could have happened from two events. The next crack became a complete fracture when the third section of the beam rotated by about 110 degrees. The last crack was on the fourth section of the beam 25 feet down from the splice. He analyzed only the fractured area in detail and did not testify or report on a comparison with any or all of the other cracks features (1/25/17 T: 594-596, 1/26/17 T: 652, 657-667). He agreed that the impact caused stress in the eastbound face of the beam ahead and that stresses alone can cause fracture. He estimated the forces brought to bear on the guide rail system in the Torabi accident, and he did not make any determination of the forces in the Behler accident. Nor did he consider the speed of the Behler vehicle or the angle of impact in determining that the accident did not generate enough stress in the beam to account for the fracture (1/25/17 T: 623-624, 1/26/17 T: 645-648, 668).
Bellemare confirmed that the vehicle hit the first segment of the guide rail with such force that it bowed the guide rail laterally by two inches, shortened it by a quarter of an inch, and the driver's side of the vehicle folded over the guide rail by eight inches (1/25/17 T: 601-603; Exh. J, 7093).
Edward Denehy, accepted as an expert in engineering, identified the tests conducted by the State in designing the median barrier system used on Route 17 and described the system and its function (Exh. F). In his expert opinion, to a reasonable degree of engineering certainty, the forces generated in claimant's accident were not enough to break the beam unless there was a defect in it. In his 36½ years working with DOT, he had never seen a median guide rail beam break apart upon impact by a passenger vehicle and penetrate the vehicle compartment (1/26/17 T: 697-707, 787-789).
On cross-examination, Denehy agreed that highway engineers use a vehicle's center of gravity to calculate the force of impact and other variables. He was not able to calculate the highest angle of incidence of the center of gravity for the Torabi vehicle because he did not know its speed, which he assumed was the "hydroplaning speed." He made no calculation of the mass of the vehicle coming into the guide rail. He also assumed the vehicle had been driving in the middle lane. For claimant's accident, Denehy estimated an approximate 17 degree angle of approach for the vehicle. He agreed that the guide rail system had never been tested to its limits or for a crash at 102 mph. (1/26/17 T: 841-852, 860-863).
On its direct case, defendant incorporated the stipulated statement by Chelsea Gallagher. According to Gallagher, who gave a written statement to the police regarding the events that night, before the accident she had been drinking at three different bar/restaurants with the driver, John Behler, claimant and the rear seat passenger, Carolyn Behler. Gallagher and the Behler siblings started drinking at 5:00 p.m. on February 1, 2013, and claimant joined them at 6:00 p.m. Claimant and John drank beer and shots. John drove them from the third venue, the Erie Pub, to Kennedy Fried Chicken to get food. John was eating chicken while driving them back to Chester when the vehicle crashed and the air bags deployed (Exhs. G and P [NYS police report with attachments]).
Defendant called Nicholas Pucino, a professional engineer with DOT and its predecessor agencies for over 30 years before retiring in 1991, who was qualified as an expert in the field of engineering and highway design. The parties stipulated that he has a background in guide rails (1/30/17 T: 1154-1155). After retirement from DOT, Pucino has worked in private practice and has provided investigation, analysis, testing and expert opinions on over 550 highway/pedestrian accidents. He had not seen a broken guide rail beam before this accident (1/30/17 T: 1152, 1160; Court Exh. 5 [CV]).
Pucino testified that the barrier system was tested at anticipated highway speeds - up to 65 mph. The system was designed to diffuse the lateral component of force from impacts by deflection, which begins on impact by overcoming the inertia of its own mass and the resistance of its posts and paddles. It then begins to stretch and move laterally to absorb and diffuse the force being applied. Its purpose is to guide a vehicle back onto the road. In Pucino's expert opinion, the impact of the Behler accident deviated from and exceeded the test conditions for the barrier. He calculated that the Behler vehicle likely hit the barrier at an "estimated" 17 degree angle, and that the total force applied to the barrier was higher than the limits to which the system was tested and for which it was designed (1/30/17 T: 1169-1187). Pucino explained that the energy effect of the Behler vehicle's speed, which was 102 or 102.5 mph, was increased exponentially over the 62 mph design (1/30/17 T: 1173-1175).
The testing that was done had vehicles approaching the guide rail at different speeds and angles, but not at high speeds like 102.5 mph. Pucino explained that the kinetic energy or force being produced by the vehicle at different speeds can be calculated but you cannot calculate the response of the system without testing "how it responds to different combinations of speed and impact angle [. . .] The problem is you can't get the barrier out of the way quickly enough if you're coming at it too fast [. . .] The performance of the rail is not really predictable at that level." The testing was done on the originally designed guide rail system, which used an external sleeve fitting over the splice. Subsequent to the testing, the sleeve was abandoned because it caught on and tore open the body of the vehicle during impact, and the internal splice (used in the system here) was adopted (1/30/17 T: 1174-1177, 1209).
Pucino concluded, to a reasonable degree of scientific certainty, that the extreme speed of the Behler vehicle on impact was what caused the beam to break (1/30/17 T: 1209-1210). The vehicle continued down the guide rail after the impact, getting closer to the splice at the end of the second beam. The end of segment two of the beam was torn out on the eastbound side and a plate had punched through into the westbound face (1/30/17 T: 1160-1161). The resulting leverage pushed the next beam westward, putting the rest of the second beam in tension and twisting the plate (1/30/17 T: 1214-1217; Exh. U).
Pucino disagreed with Denehy's opinion as to the force of the impact of Torabi's vehicle in the prior accident. Pucino testified, "the force on the rail could not have been anywhere near of the magnitude that he assumed." He had not seen a guide rail crack as a result of an impact like the one in the Torabi accident, which knocked out four posts. There was no repositioning of the beam as a result. It was "not a severe impact" (1/30/17 T: 1213-1214, 1221-1222).
On cross-examination, Pucino described calculations found in his notes showing that if the Behler vehicle hit the guide rail at an angle of 16 degrees going 102.5 mph, it would generate a calculated total force of 87,000 foot pounds, which is within the design standard and capability of the rail. He agreed that the function of the guide rail is to absorb the energy by deflection and as the energy moves along the rail it continues to be dissipated (1/30/17 T:1237-1239, 1243, 1245, 1248-1250, 1273-1274; Exhs. 27, 43).
Pucino agreed that a prior crack in the guide rail would weaken it at that spot and it would make sense that the guide rail would break on impact by a vehicle at the spot where the paddle was inserted if there was a crack there (1/30/17 T: 1258-1259). The guide rail would be expected to deflect upwards of three feet on a standard impact. The guide rail in this case deformed by 3.8 inches. He disagreed with Trooper Anderson and Dr. Puttlitz that the point of impact was where the blue paint first appeared on the rail (1/30/17 T: 1261-1267). The vehicle was rotating when it hit the barrier. It traveled around 15 feet down segment one to the splice plate, a weak spot, and past the first and second paddle insertion locations on segment two, and the guide rail did not break apart, but it did when it got to the third paddle insertion point (1/30/17 T: 1268-1275).The longer the lever arm (distance from the splice), the greater the stress (1/30/17 T: 1280-1283).
On redirect examination, Pucino explained that the system performed differently with the Behler vehicle speed of 102.5 mph and in a yaw position than it had during tests where the vehicle is on a track and going slower. Testing did not include a yaw effect. The first splice failed, then rotated and tore the beam ahead, creating the lever arm that created the stresses causing cracks or fractures at several locations and failures at four paddle points. There was a crack at the first paddle point, a break at the second and a break and separation at the third (1/30/17 T: 1289).
The accident resulted in at least two failures of the beam and a third to some degree (1/30/17 T: 1290-1292).
Defendant called Dr. Karl Puttlitz as an expert in metallurgy. Dr. Puttlitz testified that the steel used in the guide rail met all existing standards. He directly disagreed with Dr. Bellemare's conclusion that the fracture of the beam could only occur if a pre-existing defect was present or that such defect would have been open and obvious.
Dr. Puttlitz examined the fractured beam and concluded that the cracks and fractures all resulted from a single event, the Behler collision, and that no crack or fracture showed any anomaly indicative of a pre-existing defect.
The State is not the insurer of those who drive on its roads, and the fact of an accident does not render the State liable (see Brooks v New York State Thruway Auth., 73 AD2d 767, 768 [3d Dept 1979], affd 51 NY2d 892 [1980]; see also Guzman v State of New York, UID No. 2013-049-024 [Ct Cl, Weinstein, J., May 17, 2013]). To prove the State's liability, a claimant must show that the State had actual or constructive notice of, or created, the dangerous condition that caused the accident, and then failed to take reasonable steps to correct it (see Amendola v City of New York, 89 AD3d 775 [2d Dept 2011]; Fowle v State of New York, 187 AD2d 698, 699 [2d Dept 1992]), and that such negligence was a proximate cause of the accident (see Johnson v State of New York, 27 AD3d 1061, 1062 [4th Dept 2006], lv denied 7 NY3d 711 [2006]). To constitute constructive notice, the defect must be "visible and apparent," and must have existed for "a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it" (Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]) or constitute an "ongoing and recurring dangerous condition" of which defendant had "actual knowledge" (Cappolla v City of New York, 302 AD2d 547, 548 [2d Dept 2003]).
Claimant's theory is that DOT had constructive notice of a crack in the beam caused by the Torabi accident, DOT failed to replace the damaged beam, the subsequent Behler accident caused the weakened beam to fracture and the beam's fracturing resulted in the amputation of claimant's legs. Without proof that a visible and apparent crack existed, claimant has no basis for a negligence cause of action, and the State is not liable.
Claimant did not present any direct evidence of a crack in the beam caused by the Torabi accident. This is not in dispute. None of the witnesses testified to having seen a crack in spite of their ample opportunities to observe one, there were no photographs showing a crack and no records memorializing the fact that a crack existed. Claimant's only evidence that a crack did exist and that it was visible and apparent was the opinion of his expert Dr. Bellemare, an unquestionably accomplished metallurgist and engineer. Yet he had no experience in the properties and performance of guide rails, and even if a crack existed as he opined, his further opinion that it was visible and apparent is speculative and unsupported by the credible testimony of claimant's other witnesses.
Bellemare's theory was, in essence, that: fractures occur when the metal is under tension and not compression; the beam ahead of the Behler vehicle should have been in compression due to the lateral force created by the impact and should have bent like the first beam struck; because instead of bending, the beam fractured and had cracks going up the eastbound face, there was a "load reversal," which he concluded was caused by a pre-existing defect (a crack) in the beam (1/25/17 T: 518-519, 544, 552, 594-624; 1/26/17 T: 645-648, 668). He also theorized that the crack was open at the top of segment three of the beam when the segment rotated. He based this theory on microscopic images showing a lack of deformation to a protrusion on one side of the fracture surface, which he concluded would not be the case unless there had been enough clearance to prevent the protrusion from interlocking with the one on the opposite fracture surface (1/25/17 T: 529-531).
Bellemare's theories are logical, but his conclusions are not without doubt. To accept his theory of "load reversal," the court would have to find there was prima facie evidence that the impact of the Behler vehicle alone would not have been sufficient to fracture the beam unless it had been weakened by a pre-existing crack. Claimant did not meet his burden of proof on this issue. Claimant relied on the State's testing, arguing it showed that the force generated by the Behler impact was within the limit that testing had established the beam could withstand. There was extensive testimony about the amount of force generated by the impact of the 3,200 lb. Behler vehicle using a 17 degree approach angle and a speed of 102.5 mph, the maximum possible. However, the exact speed on impact and angle of approach were estimated only, and there was no dispute that the speed of 98.2 to 102.5 mph was more than 40 mph higher than any speed tested by the State. Defendant's expert Pucino testified that to predict how the guide rail system as a whole would perform on impact by a vehicle driving at such an extreme speed, the State would need to test different combinations of speed and impact angle. There was also undisputed evidence that the Behler impact itself caused cracks and a partial fracture of the rail apart from the total fracture that claimant alleges caused his injuries. The fact that none of the witnesses had previously seen a guide rail fracture like the one in the Behler accident, instead of proving there must have been a pre-existing defect in the guide rail as claimant argues, supports defendant's argument that the Behler accident was an anomaly most probably due to forces generated which exceeded test parameters.
The exact speed was not proven at trial. The speed on impact, estimated to be 98.2 to 102.5 mph, was likely closer to the 102.5 mph, which was the speed one second before algorithm wakeup. --------
Even if there was a pre-existing crack, Bellemare's opinion that it was visible and apparent is contradicted by the testimony of multiple percipient witnesses. A crack was not mentioned in the Torabi accident report by Trooper Crasa, who also had no independent recollection of the incident. Gaupman, the DOT engineer in charge of maintenance for the guide rail, testified that he did not see a crack in the beam when he went to the site after the Torabi accident and inspected the guide rail beam, paddles and posts. Nor did he or his assistant, Schick, see a crack during their inspection of the guide rail between Exits 122 and 125 on Route 17, when they walked down the median on both sides of the guide rail. Schick testified that a photograph of the fractured beam showed a white arrow he had painted on top to indicate a run of damaged posts, which shows he was close to the spot. Schick had also been present at the site when the post replacement work was being done, during which workers initiated conversations with him about beams they thought should be replaced. In fact, they did replace two beams during that project. That the beam which subsequently fractured in the Behler accident was not considered necessary to replace is additional evidence that the alleged crack, assuming it existed, was not "visible and apparent."
Claimant attacked the weight of Gaupman and Schick's testimony by establishing they did not follow the Highway Maintenance Guidelines and inspect the guide rail annually, and with testimony by Schick that inspections were mostly to identify posts that needed to be replaced and they did not always get out of the vehicle, instead inspected the guide rail as they drove by it. The court finds this argument misleading. Gaupman is the engineer in charge of 64 employees whose responsibility is to maintain 685 miles of highway. He explained that they did drive-by inspections of the entire highway system weekly and inspected damaged sites by onsite personal inspection in accordance with DOT's damage recovery program. There was testimony that four years after the incident neither man could independently recall inspecting the Torabi site. However, the issuance of an invoice by DOT subsequent to the Torabi accident lends credence to their testimony of personal inspection after that accident.
Assuming claimant had presented prima facie evidence that the Torabi accident caused a crack in the beam that was visible and apparent to the State's employees responsible for maintaining the guide rail, Behler's reckless and criminal driving was a superseding intervening cause of the accident. It would not have been reasonably foreseeable that an out-of-control vehicle traveling at 102.5 mph would crash into the guide rail and cause it to break apart. Where the acts of a third person intervene between defendant's conduct and claimant's injury, the causal connection is severed unless "the intervening act is a normal or foreseeable consequence of the situation created by the defendant's negligence" (Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 [1980]; see Bell v Board of Educ. of City of N.Y., 90 NY2d 944, 946 [1997]).
Claimant argued that the force of the crash had dissipated by the time it reached the paddle insert point with the crack and the beam still fractured. Presumably, the beam fracturing under those conditions would have been reasonably foreseeable because: (1) when the vehicle got to the section of beam with the crack, its force was within the parameters of the original testing; and (2) a beam weakened by a crack would be at risk of fracturing. However, as discussed above, the force generated by the Behler vehicle's impact at 102.5 mph., and the performance of the guide rail system under comparable conditions, were not and could not be established. The testing done on the guide rail system was to assess its performance under reasonably anticipated driving conditions, which included speeds at or near the speed limit of 65 mph. The performance of the system at a speed nearly 40 mph beyond the test maximum was not reasonably foreseeable and to find otherwise would be tantamount to strict liability. Such liability cannot be imposed by this court.
In light of the court finding defendant not liable, defendant's request for an adverse inference is moot. Accordingly, the court finds defendant not liable for negligence and Claim No. 123342 is dismissed. The Clerk of the Court shall enter judgment for defendant.
June 1, 2017
White Plains, New York
STEPHEN J. MIGNANO
Judge of the Court of Claims