Brown v. State

Centra, J.P., and Peradotto, J.

(dissenting). We respectfully dissent and would affirm the judgment dismissing the claims. Claimant was seriously injured and her husband (decedent) died when a pickup truck collided with their motorcycle at an intersection in Wayne County. The driver of the pickup truck stopped at the stop sign on Faddy Lane, but he failed to yield the right-of-way to decedent and pulled in front of and collided with the motorcycle. Decedent was operating the motorcycle on State Route 350 (Route 350), which did not have a stop sign or other traffic control device at the intersection with Faddy Lane (intersection). According to claimant, there was a history of accidents at the intersection based on, inter alia, its negligent *1586design and “inadequate posting of signs and/or lack of signs including but not limited to flashing warning signs.”

On this appeal from a judgment following a nonjury trial, we must view the record in the light most favorable to sustain the judgment and give “ ‘due deference to the . . . court’s determinations regarding witness credibility’ ” (Matter of City of Syracuse Indus. Dev. Agency [Alterm, Inc.], 20 AD3d 168, 170 [2005]). Further, “the decision of the . . . court should not be disturbed upon appeal unless it is obvious that the court’s conclusions could not be reached under any fair interpretation of the evidence” (Thoreson v Penthouse Intl., 80 NY2d 490, 495 [1992] [internal quotation marks omitted], rearg denied 81 NY2d 835 [1993]; see Garofalo v State of New York, 17 AD3d 1109, 1110 [2005], lv denied 5 NY3d 707 [2005]; Farace v State of New York, 266 AD2d 870, 871 [1999]).

The Court of Claims properly concluded that defendant is not entitled to qualified immunity pursuant to Weiss v Fote (7 NY2d 579 [I960]). Although defendant was notified that the intersection was potentially dangerous and initiated a study in February 1999, it abandoned and never completed that study before the accident at issue in April 2003. Defendant therefore may be liable for its failure to undertake an adequate study (see generally Friedman v State of New York, 67 NY2d 271, 284 [1986]). We cannot agree with the majority, however, that the court erred in failing to determine whether the dangerous condition of the intersection was a proximate cause of the accident. Indeed, we agree with the court that defendant’s negligence was not a proximate cause of the accident.

“One who is injured in a traffic accident can recover against [the State] if it is shown that its failure to install a traffic control or warning device was negligent under the circumstances, that [such] omission was a contributing cause of the mishap, and that there was no reasonable basis for the [State’s] inaction” (Alexander v Eldred, 63 NY2d 460, 463-464 [1984]). In our view, claimant was required to show more than that the potentially dangerous condition of the intersection was a proximate cause of her injuries and decedent’s death. Rather, she was required to show what corrective action should have been taken by defendant and that such corrective action would have been completed before and would have prevented the accident. For example, in Alexander, the plaintiff established that there was an inadequate study and unreasonable basis for the defendant municipality’s traffic plan (id. at 466). At trial, the plaintiff submitted evidence that a stop sign should have been in place, and that evidence was unrefuted by the defendant municipality *1587(id. at 464-465). The Court of Appeals determined that the plaintiff presented evidence establishing that the defendant municipality failed to install the necessary stop sign without an adequate study or reasonable basis, that the driver failed to stop at the proper location and that the accident might have been avoided had a stop sign been in place (id. at 469).

In this case, the court rejected the opinion of claimant’s expert that, had defendant completed its study, a four-way stop would necessarily have been installed at the intersection prior to the accident. The court accepted the conclusions of defendant’s expert that any corrective action would have been implemented incrementally, and thus the court determined that it was pure speculation to conclude that a four-way stop — the corrective action suggested by claimant’s expert — would have been in place before claimant’s accident even if defendant had undertaken a timely and adequate study. The court noted that claimant’s expert agreed that the actions of defendant in remedying the condition following a study would have been incremental and that a four-way stop would have been installed only if other measures proved ineffective.

The court’s determination is supported by the testimony of defendant’s expert that a four-way stop was not “a typical corrective action” where, as here, the majority of vehicles involved in accidents at an intersection are stopping at the posted stop signs. Indeed, that expert testified that four-way stops are “rarely used approaches to addressing accident histories.” Defendant’s expert further testified that, depending on the findings following a study, defendant may not have taken any corrective action and that there were already intersection warning signs in place on Route 350 and stop signs controlling traffic on Paddy Lane.

We therefore conclude that the determination of the court that defendant’s negligence was not a proximate cause of the injuries sustained by claimant and decedent’s death is supported by a fair interpretation of the evidence. Present — Centra, J.P, Peradotto, Garni, Lindley and Sconiers, JJ.