Heffler v. State

Lazer, J.,

dissents and votes to reverse the interlocutory judgment and dismiss the claim, with the following memorandum: While proceeding west on Bryant Pond Road and crossing the northbound lane of the Taconic State Parkway to turn south, claimant Toni Ann Heffler’s car was struck by a northbound vehicle. In her personal injury claim against the State, Heffler’s principal focus was the State’s negligence in the design of the Bryant Pond Road intersection and its failure to remove snow from the southeast corner of the intersection where it obstructed vision. After a trial on the issue of liability only, the Court of Claims found that the State had failed to take reasonable steps to modify the intersection even though its employees were aware of the dangerous condition created by the median barrier between north and southbound lanes. That barrier deprived westbound drivers crossing the parkway of a clear view of southbound traffic approaching from the right, a situation that was severely exacerbated by the lack of any refuge space between northbound and southbound lanes if southbound traffic suddenly appeared. Despite the fact that obstructed vision of southbound traffic coming from the right did not appear to be a factor in claimant’s case because her car was struck from the left by a northbound car as soon as she entered the parkway, the Court of Claims found the State liable because the median barrier “placed an undue stress on a driver at the Bryant Pond Road intersection; a stress which foreseeably could cause a judgmental error in making the critical choice of go or stay”. Furthermore, after finding that the State’s failure to push snowbanks further back from the parkway was not negligence or even a proximate cause of the accident, the court determined that the snow partially obscured Heffler’s vision and increased the dangers of the intersection. The State’s liability was set at 75% and the claimant’s at 25% based on her negligence in proceeding onto the parkway with a car approaching on the left. While my colleagues agree with the Court of Claims that the dangerous condition of the intersection caused the accident, they have reassessed liability at 50% for each side. I cannot agree, however, that the design of the median barrier and the lack of refuge space was a proximate cause of this collision since Heffler’s view of the northbound car that struck her vehicle was not obstructed by the barrier and *929refuge space never came into play. As to “stress” caused claimant by the design of the intersection, there is not an iota of evidence in the record concerning either her personal stress or that of any other person who ever entered the intersection. My disagreement with the majority concerning liability for the intersection design relates solely to proximate cause since proof of negligence was ample. At its intersection with Bryant Pond Road the parkway consisted of four lanes divided by a metal box beam median barrier approximately 27 to 30 inches high with three-inch-wide metal posts situated six feet apart. While the barrier separated northbound and southbound lanes, no actual median area actually exists between the lanes. Over the center of the intersection was a suspended flashing signal with a yellow indicator displayed to parkway travelers and a red indicator to Bryant Pond Road motorists. There was also a stop sign at the northeast corner of the intersection facing the westbound traffic on Bryant Pond Road. In a 1976 report by the Chief Engineer of East Hudson Parkway Authority, the intersection at issue was selected as the most critical intersection on the parkway, with the sight obstruction created by the median barrier a major contributing factor. The report also warned that “the narrow median does not provide a safe refuge for turning or crossing vehicles” so a driver intending to cross half the intersection before turning left was left without proper vision of oncoming traffic on the right and no place to hide if such traffic suddenly appeared. Although claimant’s retrograde amnesia prevented her from remembering the circumstances leading up to the accident, she did produce eyewitness Andrew Schug, the operator of the vehicle immediately behind her when the accident occurred. Schug testified that a pile of snow three to three and one-half feet high set back one foot from the southeastern corner of the intersection “somewhat blocked” the view of the traffic in the northbound lane of the parkway. The snow had fallen on the Friday night and Saturday morning prior to the Monday morning accident. Schug noted that he could not get a good view of traffic until he was “partially into the intersection” about a foot or so over the stop line but behind the traveled portion of the parkway. Although proof and theory supporting negligence and proximate cause ov.erlap, they are not the same conceptually and evidence of negligence alone is not enough to establish liability (Sheehan v City of New York, 40 NY2d 496, 501; Dunn v State of New York, 29 NY2d 313; Brogan v Zummo, 92 AD2d 533). The concept of proximate cause incapable of precise definition, stems from policy considerations that serve to place manageable limits upon liability for negligent conduct (Derdiarian v Felix Contr. Corp., 51 NY2d 308, 314; Ventricelli v Kinney System Rent A Car, 45 NY2d 950, 952). Proximate cause must “ ‘be determined on the facts of each case upon mixed considerations of logic, common sense, justice, policy and precedent’ ” (Prosser, Law of Torts [4th ed], § 42, p 249). Some of the factors to be considered include the relationship between the parties, temporal duration, spatial relation, foreseeability and public policy (see Pagan v Goldberger, 51 AD2d 508, 511-512). Although the causation issue is generally left for the trier of fact, it is the court’s function to determine if a prima facie case of causation has been established (Ventricelli v Kinney System Rent A Car, 45 NY2d 950, supra). Since conjecture and speculation cannot substitute for proof of causation (see Monahan v Weichert, 82 AD2d 102,108; Kinch v Adams, 46 AD2d 467, 469), on this record it cannot be said that the accident involving a northbound vehicle was rendered any more probable by the existence of the barrier which obstructed the view of southbound traffic. Although the trial court circumvented the causation problem by attributing the accident to the stress suffered by all westbound drivers who entered the intersection, the record is wholly bare of evidence to support the conjecture. The trial court’s determination simply rendered the State an insurer of every westbound vehicle which entered the intersection. As to the *930obstructive visual effect of the snowbanks, I agree with the Court of Claims that there was insufficient proof that the existence or position of these snowbanks established negligence on the part of the State. While the State must correct dangerous conditions on its highways, there was no showing that it had a reasonable opportunity to do anything more about the snow that had been pushed off the roadway of the parkway (see Stuart-Bullock v State of New York, 33 NY2d 418; Hicks v State of New York, 4 NY2d 1). In the absence of proof that the State had any reasonable opportunity to remedy the situation in the brief period following the snow storm, there is no basis for finding the State negligent in failing to eliminate the purported obstruction to vision (see Mandel v City of New York, 44 NY2d 1004; Harrington v City of Buffalo, 121 NY 147; 1 New York Pattern Jury Instructions [2d ed] 2:225A, pp 523-524; cf. Smart v Wozniak, 58 AD2d 993). Accordingly, I dissent and vote to reverse and dismiss the claim.