Chunhye Kang-Kim v. City of New York

Mazzarelli, J.

(concurring). I agree with the majority’s result. *63However, I write separately because I would decide this case upon a strict application of the law to the uncontested facts. Further, I see no purpose in the majority’s disparagement of the expert testimony, the admission of which was not an improvident exercise of the trial court’s discretion (see Selkowitz v County of Nassau, 45 NY2d 97, 101-102 [1978]).

In my view it is decisive that there was no evidence in the trial record that “due care was not exercised in the preparation of the design” of the subject intersection (Weiss v Fote, 7 NY2d 579, 586 [1960]). In addition, there was no evidence of a history of similar accidents which would have put the City of New York on notice of a hazardous condition which required corrective action (Friedman v State of New York, 67 NY2d 271, 284 [1986]). Rather, this accident was the result of the recklessness of an intoxicated driver who ignored multiple warnings to turn right at a T-intersection. He disregarded a red light and proceeded straight into a zebra-striped pedestrian safety zone. Upon realizing his predicament, he attempted to brake on ice-covered pavement, losing control of his car, sliding across a parking area and injuring plaintiffs ward.

In Tomassi v Town of Union (46 NY2d 91 [1978]), the Court of Appeals reviewed whether a municipality could be held liable for injuries caused when one of two vehicles involved in a head-on collision was forced into a ditch adjacent to the roadway (at 97). The Court held that the Town was not liable, and that “so long as a highway may be said to be reasonably safe for people who obey the rules of the road, the duty imposed upon the municipality is satisfied” (id.). The Court in that case concluded that the accident was caused by the failure of both drivers to obey the rules of the road. Here too, the accident was attributable to driver fault, not road design.

A municipality has a continuing duty to review the operation of traffic conditions, and once made aware of a hazardous condition, to study the roadway “with an eye toward alleviating [ ] danger” (Friedman, 67 NY2d at 284). Here, one of plaintiffs experts testified there were a number of accidents at the subject intersection in the 27 months preceding this incident. While one of those accidents involved an automobile proceeding straight though the T-intersection, it was in no other way similar to this incident. Further, there was no testimony that the traffic conditions at the intersection would have required the City to conduct a study, with a view towards either erecting barriers around the pedestrian walkways or raising the subject curb (see Hough v *64State of New York, 203 AD2d 736, 739 [1994] [no evidence of accidents of a similar nature warranting requested safety-measures]; cf. Deringer v Rossi, 260 AD2d 305 [1999]).

Contrary to the majority, I believe that expert witnesses are necessary to a case such as this. Such cases could not be determined without the “ clarification of] issue[s] calling for professional or technical knowledge, possessed by the expert and beyond the ken of the typical juror” (De Long v County of Erie, 60 NY2d 296, 307 [1983]). The record reveals that civil engineers and traffic safety specialists were called by both plaintiff and the City, and that these witnesses were subject to cross-examination. These experts gave their opinions as to the purposes of particular traffic devices such as curbs and barriers, roadway design, and, as relevant to the municipal duty to remedy known hazards {Friedman, supra), statistics about prior accidents at or near the location of this incident. The jury’s verdict reveals that it accepted and rejected portions of the expert testimony, as was its province. While I agree that the jury’s determination as to the City’s liability was the result of a misapplication of the governing law to the uncontested facts, I find no improvident exercise of discretion with respect to the court’s admission of expert testimony.

Accordingly, I concur only in the result reached by the majority.

Buckley, P.J., Saxe and Williams, JJ., concur with Andrias, J.; Mazzarelli, J., concurs in a separate opinion.

Judgment, Supreme Court, New York County, entered September 27, 2004, reversed, on the law, without costs, the City’s motion to dismiss the complaint as against it granted and the judgment against it vacated. The Clerk is directed to enter an amended judgment accordingly.